Mcinchak Defendants' Notice of Motion and Special Motion to Strike

8/12/2019 Mcinchak Defendants' Notice of Motion and Special Motion to Strike

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28STRADLING YOCCACARLSON &RAUTH

L AW YE R SNE W POR T BEACH DEFENDANTS ANTI-SLAPP MOTION TO STRIKE 5:14-cv-03084 (HRL)

DOCSOC/1672298v5/102910-0006

JEFFREY A. DINKIN, SBN 111422

[email protected]

ALLISON E. BURNS, SBN 198231

[email protected]

DAVID C. PALMER, SBN 251609

[email protected] YOCCA CARLSON & RAUTHA Professional Corporation

800 Anacapa Street, Suite ASanta Barbara, California 93101

Telephone: (805) 730-6800

Facsimile: (805) 730-6801

Attorneys for Defendants, CITY OFCARMEL-BY-THE SEA; JASON

STILWELL; SUSAN PAUL

Exempt from filing feeGovernment Code 6103

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE

STEVEN MCINCHAK

Petitioner/Plaintiff,

v.

CITY OF CARMEL-BY-THE-SEA,

JASON STILWELL, CITYADMINISTRATOR OF THE CITY OF

CARMEL-BY-THE-SEA, SUSANPAUL, ADMINISTRATIVE

SERVICES DIRECTOR OF THECITY OF CARMEL-BY-THE-SEA;

and DOES 1 through 50, inclusive,

Defendants.

CASE NO. 5:14-cv-03084 (HRL)

DEFENDANTS NOTICE OFMOTION AND SPECIAL MOTIONTO STRIKE CERTAIN CLAIMS OF

PLAINTIFFS PETITION-COMPLAINT PURSUANT TOCALIFORNIA CODE OF CIVILPROCEDURE 425.16 (ANTI-SLAPPMOTION TO STRIKE);MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORTTHEREOF

[Filed concurrently with Declarations ofSusan Paul, Jason Stilwell and Allison E.

Burns; Request for Judicial Notice; and[Proposed] Order]

DATE: September 30, 2014

TIME: 10:00 a.m.COURTROOM: 2

Action Filed: June 4, 2014

Trial Date: Not Set

Case5:14-cv-03084-RMW Document10 Filed08/01/14 Page1 of 32


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DEFENDANTSANTI-SLAPP MOTION TO STRIKE 5:14-cv-03084 (HRL)

DOCSOC/1672298v5/102910-0006

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on September 30, 2014 at 10:00 a.m., or as

soon thereafter as the matter may be heard in Courtroom 2 of the above-entitled

Court, defendants Jason Stilwell, City Administrator of the City of Carmel-by-the-

Sea, Susan Paul, Administrative Services Director of the City of Carmel-by-the

Sea and the City of Carmel-by-the-Sea (collectively, Defendants), will and

hereby do move for an order striking the Fourth Cause of Action for Defamation

(Defamation Claim), the Fifth Cause of Action for Intentional Infliction of

Emotional Distress (Intentional Infliction Claim), and Sixth Cause of Action

for Negligent Infliction of Emotional Distress (Negligent Infliction Claim)

asserted by Plaintiff Steven McInchak (Plaintiff) in the Petition-Complaint

(Complaint) pursuant to California Code of Civil Procedure section 425.16.

This Special Motion to Strike is made on the basis that Plaintiffs

Defamation, Intentional Infliction and Negligent Infliction Claims are directed at

Defendants alleged conduct of making statements before, or in connection with,

legislative and other official proceedings, as well as statements concerning an issue

of public interest. As such, these claims seek to chill Defendants exercise of

protected rights, and are therefore barred as a matter of law.

Moreover, Defendants will and hereby do request, pursuant to California

Code of Civil Procedure section 425.16(c), an order awarding Defendants their

attorneys fees incurred in bringing this Motion in an amount to be determined in a

later proceeding.

This motion is based on this notice, the attached memorandum, the

Declaration of Susan Paul in support thereof, the Declaration of Jason Stilwell in

support thereof, the Declaration of Allison E. Burns in support thereof, the Request

for Judicial Notice in support thereof, the records, pleadings and documents in this



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L AWYERS NE W POR T BE AC H

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DEFENDANTS ANTI-SLAPP MOTION TO STRIKE 5:14-cv-03084 (HRL)

DOCSOC/1672298v5/102910-0006

case, and upon such other oral or documentary evidence as may be presented at or

before the hearing on this motion.

DATED: August 1, 2014 STRADLING YOCCA CARLSON &

RAUTHA Professional Corporation

By: /s/ Allison E. BurnsJeffrey A. DinkinAllison E. BurnsDavid C. Palmer

Attorneys for DefendantsCITY OF CARMEL-BY-THESEA; JASON STILWELL; SUSANPAUL



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DOCSOC/1672298v5/102910-0006

TABLE OF CONTENTSINTRODUCTION ........................................................................................... 1I.

STATEMENT OF FACTS. ............................................................................. 2II.

PROCEDURAL HISTORY. ........................................................................... 4III. LEGAL STANDARD. .................................................................................... 5IV.

A. A FEDERAL DISTRICT COURT SITTING IN CALIFORNIAHAS THE AUTHORITY AND OBLIGATION TOCONSIDER THE ANTI-SLAPP MOTION. ........................................ 5

B. THIS ANTI-SLAPP MOTION IS TIMELY. ....................................... 5

C. CALIFORNIA LAW AND PUBLIC POLICY MANDATETHAT SLAPP CLAIMS ARE NOT ACTIONABLE AS AMATTER OF LAW. ............................................................................. 6

ARGUMENT. ................................................................................................. 8V.

A. PLAINTIFFS DEFAMATION CLAIM AGAINSTDEFENDANTS JASON STILWELL AND SUSAN PAULARISES FROM ACTIVITY PROTECTED BY THE ANTI-SLAPP STATUTE. ............................................................................... 8

1. Mr. Stilwell and Ms. Pauls Allegedly DefamatoryStatements Were Made Before or in Connection With anIssue Under Consideration by an Official ProceedingAuthorized by Law. .................................................................... 9

2. Mr. Stilwell and Ms. Pauls Allegedly DefamatoryStatements Were Made Before or in Connection With anIssue Under Consideration at a Legislative Proceeding. .......... 10

3. Mr. Stilwell and Ms. Pauls Allegedly DefamatoryCommunications Were Made in Connection with anIssue of Public Interest. ............................................................ 10

B. PLAINTIFF CANNOT SHOW A PROBABILITY OFSUCCEEDING ON THE MERITS AS TO THEDEFAMATION CLAIM AGAINST JASON STILWELL ANDSUSAN PAUL .................................................................................... 13

1. Any Allegedly Defamatory Statements Made byDefendants Jason Stilwell and Susan Paul are AbsolutelyPrivileged Pursuant to Civil Code Section 47(b) and AreNot Actionable. ......................................................................... 14

2. The Allegedly Defamatory Communications made byDefendants Jason Stilwell and Susan Paul are PrivilegedUnder California Civil Code Section 47(a) .............................. 15



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DOCSOC/1672298v5/102910-0006

C. PLAINTIFFS INTENTIONAL INFLICTION ANDNEGLIGENT INFLICTION CLAIMS AGAINSTDEFENDANTS JASON STILWELL AND SUSAN PAULARISE FROM ACTIVITIES THAT ARE PROTECTED BYTHE ANTI-SLAPP STATUTE .......................................................... 15

D. PLAINTIFF CANNOT SHOW A PROBABILITY OFSUCCEEDING ON THE MERITS REGARDING THE

INTENTIONAL INFLICTION AND NEGLIGENTINFLICTION CLAIMS AGAINST DEFENDANTS JASONSTILWELL AND SUSAN PAUL ...................................................... 16

E. PLAINTIFFS DEFAMATION, INTENTIONALINFLICTION AND NEGLIGENT INFLICTION CLAIMSAGAINST THE CITY ARISE FROM ACTIVITIES THATARE PROTECTED BY THE ANTI-SLAPP STATUTE .................. 19

F. PLAINTIFF CANNOT SHOW A PROBABILITY OFSUCCEEDING ON THE MERITS REGARDING THEDEFAMATION, INTENTIONAL INFLICTION ANDNEGLIGENT INFLICTION CLAIMS AGAINST THE CITY ........ 20

G. DEFENDANTS ARE ENTITLED TO RECOVERATTORNEYS FEES. ........................................................................ 20

CONCLUSION ............................................................................................. 21VI.



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DOCSOC/1672298v5/102910-0006

TABLE OF AUTHORITIES

Page(s)

CASES

Albertson v. Raboff

46 Cal. 2d 375 (1956) .........................................................................................14

Amylou R. v. County of Riverside,

28 Cal. App. 4th 1205 (1994) .............................................................................17

Averill v. Superior Court

42 Cal. App. 4th 1170 (1996) .............................................................................12

Bradbury v. Sup.Ct.,49 Cal. App. 4th 1108 (1996) .........................................................................6,19

Briggs v. Eden Council for Hope & Opportunity,

19 Cal. 4th 1106 (1999) ..................................................................................8,10

Castello v. City of Seattle,

2010 U.S. Dist. LEXIS 127648 (W.D. Wash) .....................................................9

Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund,24 Cal. 4th 800 (2001) ........................................................................................18

Chavez v. Mendoza,

94 Cal. App. 4th 1083 (2001) ...............................................................................7

Cole v. Fair Oaks Fire Protection Dist.,

43 Cal. 3d 148 (1987) .........................................................................................18

Conroy v. Spitzer,70 Cal. App. 4th 1446 (1999) .............................................................................11

Cotati v. Cashman,

29 Cal. 4th 69 (2002) ............................................................................................6

Damon v. Ocean Hills Journalism Club,

85 Cal. App. 4th 468 (2000) ...............................................................................12

Dove Audio, Inc. v. Rosenfeld, Meyer & Susman

47 Cal. App. 4th 777 (1996) ...............................................................................12



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Du Charme v. International Broth. Of Elec. Workers, Local 45,110 Cal.App.4th 107 (2003) ...............................................................................11

Equilon Enters. v. Consumer Cause, Inc.,

29 Cal. 4th 53 (2002) ............................................................................................7

Flately v. Mauro,39 Cal. 4th 299 (2006) ........................................................................ 8, 13, 16,20

Fox Searchlight Pictures, Inc. v. Paladino

89 Cal App. 4th 294 (2001) ................................................................................16

Gallimore v. State Farm Fire & Casualty Ins. Co.,

102 Cal. App. 4th 1388 (2002) .........................................................................6,7

Hagberg v. California Federal Bank,32 Cal. 4th 350 (2004) ........................................................................................14

Hansen v. Department of Corrections & Rehabilitation,

171 Cal. App. 4th 1537 (2008) .................................................................9, 10,17

Kemmerer v. County of Fresno200 Cal. App. 3d 1426 (1988) ............................................................................17

Ketchum v. Moses,

24 Cal. 4th 1122 (2001) ......................................................................................21

Ludwig v. Superior Court,37 Cal. App. 4th 8 (1995) ...................................................................................12

Matson v. Dvorak,40 Cal. App. 4th 539 (1995) ...............................................................................11

McCoy v. Hearst Corp.,

42 Cal. 3d 835 (1986) .........................................................................................12

Miller v. City of LA

169 Cal.App.4th 1373 (2008) ...............................................................................9

Nevallier v. Sletten,29 Cal. 4th 82 (2002) ......................................................................................7,13

Nygard, Inc. v. Uusi-Kerttula,

159 Cal. App. 4th 1027 (2008) ...........................................................................11



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Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP,133 Cal. App. 4th 658 (2005) .............................................................................16

Pettitt v. Levy,

28 Cal. App. 3d 484 (1972) ................................................................................14

Rader v. Thrasher22 Cal. App. 3d 883 (1972) ................................................................................14

Robinson v. Alameda County,

875 F. Supp. 2d 1029 (N.D. Cal. 2012) .............................................................10

Semore v. Pool,

217 Cal. App. 3d 1087 (1990) ............................................................................18

Sheppard v. Freeman,67 Cal. App. 4th 339 (1998) ...............................................................................17

Torres v. Parkhouse Tire Service, Inc.

26 Cal. 4th 995 (2001) ..................................................................................18,20

U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc.190 F.3d 963 (9

thCir. 1999) .................................................................................5

Walker v. Kiousis,

93 Cal. App. 4th 1432 (2007) .........................................................................8,13

Whitty v. First Nationwide Mortgage Corporation,2007 U.S. Dist. LEXIS 12988 (S.D. Cal. 2007) ................................................21

Wilcox v. Superior Court,27 Cal. App. 4th 821 (1994) ...............................................................................13

Williams v. Taylor,

129 Cal. App. 3d 745 (1982) ................................................................................8

Wrigley v. Aquaviva, et al.,

2010 U.S. Dist. Lexis 120115 (E.D. Cal. 2010) ...................................................5

STATUTES

California Code of Civil Procedure section 425.16 ......................................... passim

California Labor Code sections 3200 et seq. ...........................................................18



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DOCSOC/1672298v5/102910-0006

California Civil Code section 47 ....................................................... 8, 13,14,15, 16

California Government Code Section 815.2 ...........................................................20

California Government Code Section 821.6 ...........................................................17

California Labor Code, sections 3600 ...............................................................18,20

California Labor Code, sections 3602 ............................................................... 18, 20

California Labor Code section 3601 ........................................................................18

OTHER AUTHORITIES

City of Carmel-By-The-Sea Municipal Code Chapter 2.52 ...................................... 4



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DEFENDANTSANTI-SLAPP MOTION TO STRIKE 5:14-cv-03084 (HRL)DOCSOC/1672298v5/102910-0006

INTRODUCTIONI.

In an effort to protect the free and open public discussion of important public

issues, as well as to safeguard the Citys ability to fully investigate and prosecute

potential wrongdoing, Defendants Jason Stilwell, City Administrator (Mr

Stilwell), Susan Paul, Administrative Services Director (Ms. Paul) and the City

of Carmel-by-the-Sea (City), (referred herein collectively as Defendants),

hereby make this special motion to strike (Anti-SLAPP Motion) the Fourth

Cause of Action for Defamation (Defamation Claim), the Fifth Cause of

Action for Intentional Infliction of Emotional Distress (Intentional Infliction

Claim), and Sixth Cause of Action for Negligent Infliction of Emotional

Distress (Negligent Infliction Claim) alleged in the Complaint-Petition filed by

Plaintiff Steven McInchak (Plaintiff) on June 4, 2014 (Complaint). Plaintiff

seeks damages from Defendants for allegedly making statements concerning an

issue of public interest before, or in connection with, legislative and other official

proceedings in the proper discharge of their official duties to initiate and carry out

an investigation of potential wrongdoing by Plaintiff. The California Legislature

has defined such claims as a Strategic Lawsuit Against Public Participation

(SLAPP) and condemned such litigation as improper for its chilling effect on the

valid exercise of protected rights and freedoms. See Cal. Code. Civ. Proc.

425.16 (Anti-SLAPP Statute). Furthermore, even assuming, arguendo, that

Plaintiffs allegations are true, the alleged activities upon which Plaintiffs

Defamation, Intentional Infliction and Negligent Infliction Claims are based are

absolutely privileged and, therefore, barred as a matter of law.

Defendants respectfully request the Court strike Plaintiffs Defamation

Claim, Intentional Infliction Claim and Negligent Infliction Claim with prejudice

and award Defendants, pursuant to California Code of Civil Procedure section

425.16(c), their attorneys fees incurred to bring this motion in an amount to be

determined by noticed motion.



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DEFENDANTS ANTI-SLAPP MOTION TO STRIKE 5:14-cv-03084 (HRL)DOCSOC/1672298v5/102910-0006

STATEMENT OF FACTS.II.

Plaintiff has been employed by the City as its Information Systems Network

Manager (IT Director) since 1997 and is an at-will employee. Declaration of

Susan Paul in Support of Special Motion to Strike (Paul Decl.), 3, Exh. A. On

or about January 22, 2013, the City began receiving reports from various City staff

members regarding their city computers, which reports caused Ms. Paul to become

concerned regarding the integrity of the Citys computer network, including the

security thereof. Paul Decl. 4. On or about February 27, 2013, the City retained

computer forensic expert Mark Alcock (Mr. Alcock) to survey the Citys

computer network and investigate the cause of the reported issues. Paul Decl. 5.

In or about March 2013, the City became aware of possible misconduct by the

Plaintiff including but not limited to possible unauthorized access to City

computers, unauthorized access to electronically stored files on City employees

computers and unauthorized transmittal of confidential information from those

computers to himself (collectively, the IT Misconduct). Paul Decl. 6

Thereafter, two separate investigations into the IT Misconduct commenced; one

into Plaintiffs possible criminal activity (Criminal Investigation) and the second

into the IT Misconduct and related job performance of Plaintiff in his capacity as

an employee of the City (Administrative Investigation). Paul Decl. 7. The

Criminal Investigation was conducted by the Carmel Police Department in

consultation with the Monterey County District Attorneys Office and computer

forensic experts retained by the City. Paul Decl. 8. In or about May 2013, after

consultation with Ms. Paul, City Administrator Mr. Stilwell authorized placing

Plaintiff on administrative leave with pay. Declaration of Jason Stilwell in Support

of Special Motion to Strike (Stilwell Decl.), 7.

As part of the Criminal Investigation, the Carmel Police Department worked

with the Monterey County District Attorney to obtain a search warrant for

Plaintiffs residence (Search Warrant). Paul Decl. 10. On June 5, 2013, Carmel



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Police officers, including the Carmel Chief of Police, together with Monterey

County Sheriffs Deputies, executed the Search Warrant on Plaintiffs residence

(Search Warrant Execution). Paul Decl. 11. At the request of the Carmel Police

Chief, Ms. Paul briefly accompanied the officers during part of the Search Warrant

Execution in order to formally place the Plaintiff on administrative leave with pay

and ensure the integrity of the Citys security systems by taking possession of

Plaintiffs city phone, city keys and laptop. Paul Decl. 12. The only

communication Ms. Paul had with the Plaintiff was to (i) advise him that he was

being placed on administrative leave and (ii) request that he hand over his City cell

phone, keys and laptop to her. Paul Decl. 12. Ms. Paul had no further

communication with the Plaintiff during the Search Warrant Execution. Paul Decl

12. Immediately upon finishing the foregoing tasks, Ms. Paul went to the front

door of Plaintiffs residence to wait for further instruction. Paul Decl. 12. Once

the Carmel Police Chief confirmed that the remaining officers did not require

additional information or assistance from her, Ms. Paul left Plaintiffs residence

Paul Decl. 12.

Mr. Alcock, at the request of the Carmel Police Chief, also accompanied the

officers and deputies during part of the Search Warrant Execution in order to help

locate certain computer equipment and make an immediate live acquisition image

of the contents of the computer equipment. Paul Decl. 13. Beginning on June 5,

2013 and continuing to date, the City has retained Plaintiff on administrative leave

with pay pending the completion of the Administrative Investigation. Paul Decl.

16. The Administrative Investigation involves forensic computer analysis of the

Citys expansive computer network, including arduous and complex expert

analysis and data mining. Paul Decl. 16. The Administrative Investigation and

Criminal Investigation have received both video and print coverage in the media.

Declaration of Allison Burns in Support of Special Motion to Strike (Burns

Decl.) 3-6, Exh. A-D.



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California, County of Monterey, Civil Case No. M128062. Thereafter, Defendants

removed the case to this Court.

LEGAL STANDARD.IV.

A. A FEDERAL DISTRICT COURT SITTING IN CALIFORNIA HAS

THE AUTHORITY AND OBLIGATION TO CONSIDER THE ANTI-

SLAPP MOTION.

This Court has the authority and obligation to consider this Anti-SLAPP

motion. The Ninth Circuit Court of Appeals has determined that the Anti-SLAPP

Statute is substantive in nature and, therefore, a federal district court exercising

diversity jurisdiction follows Californias law and applies Californias Anti-

SLAPP Statute. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc

(Newsham) 190 F.3d 963, 972 (9thCir. 1999). While not specifically stated in

Newsham, the fact that the Ninth Circuit held that the Anti-SLAPP Statute was

substantive in nature, establishes that the Anti-SLAPP Statute applies where the

Federal District Court exercises supplemental jurisdiction, as the Court does here

In fact, Federal District Courts have applied the Anti-SLAPP Statute when the

court was exercising supplemental jurisdiction over the plaintiffs state law claims

See Wrigley v. Aquaviva, et al., 2010 U.S. Dist. Lexis 120115 (E.D. Cal. 2010).

B. THIS ANTI-SLAPP MOTION IS TIMELY.

Californias Anti-SLAPP statute dictates that an Anti-SLAPP motion may

be filed within 60 days of the service of the complaint or in the courts discretion at

any later date. The Complaint was served on the Defendants on June 4, 2014

fewer than 60 days ago. This Anti-SLAPP motion is timely.



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C. CALIFORNIA LAW AND PUBLIC POLICY MANDATE THAT

SLAPP CLAIMS ARE NOT ACTIONABLE AS A MATTER OF LAW.

The Anti-SLAPP Statute was enacted to protect individuals from litigation

brought to chill or punish the exercise of protected rights. See Cal. Code Civ. Proc

425.16(a). Accordingly, the California Anti-SLAPP Statute provides as follows:

A cause of action against a person arising from any act of that person

in furtherance of the persons right to petition or free speech under the

United States or 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 is a probability

that the plaintiff will prevail on the claim. Cal. Code Civ. Proc. 425.16(b)(1).

The goal is to eliminate meritless or retaliatory litigation at an early stage of the

proceedings. Gallimore v. State Farm Fire & Casualty Ins. Co., 102 Cal. App. 4th

1388, 1396 (2002) (Gallimore). Furthermore, the protections of the California

Anti-SLAPP Statute have been extended to public officials and governmental

bodies, such as Defendants. See San Ramon Valley Fire Protection Dist. v. Contra

Costa County Employees Retirement Assn, 125 Cal. App. 4th 343, 353 (2004)

(San Ramon)[confirming Anti-SLAPP protections extend to public officials and

government bodies]; Bradbury v. Sup.Ct., 49 Cal. App. 4th 1108, 1114 (1996)

(Bradbury) [the word person as used in section 425.16, subdivision (b) must

be read to include a governmental entity].

The critical inquiry in the Anti-SLAPP context is whether the plaintiffs claim

is based on an act in furtherance of the defendants right of petition or free speech.

Cotati v. Cashman, 29 Cal. 4th 69, 78 (2002). A defendant must demonstrate that

the act underlying the plaintiffs claim fits within one of the categories set forth in

California Code of Civil Procedure section 425.16(e). California Code of Civil

Procedure section 425.16(e) provides that an act in furtherance of a persons right



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of petition or free speech . . . in connection with a public issue includes: (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.

California Code of Civil Procedure section 425.16 requires the court to

engage in a two-step analysis of Anti-SLAPP motions. First, the court must decide

whether the defendant has made a threshold showing that the challenged act or

conduct is subject to a motion to strike. Nevallier v. Sletten, 29 Cal. 4th 82, 88-89

(2002). To satisfy this initial burden, the defendant need only show that the

targeted conductarisesfrom activity falling into one of the categories identified in

California Code of Civil Procedure section 425.16(e). Id.; Equilon Enters. v

Consumer Cause, Inc., 29 Cal. 4th 53, 58 (2002). In determining whether a

defendant has met its burden, the court considers the pleadings, declarations, and

matters that may be judicially noticed. Cal. Code Civ. Proc. section 425.16(b).

Once such a showing has been made, the second step of the analysis requires

the Court to determine whether the plaintiff has demonstrated a probability of

prevailing on the claim. Nevallier, 28 Cal. 4th at 88-89. In other words, the burden

of proof shifts to the plaintiff to prove that the challenged claims have a reasonable

probability of succeeding at trial. Id. The plaintiff meets that burden only by

making a prima facie showing of facts which would support a judgment in

plaintiffs favor. Id.; Gallimore, 102 Cal. App. 4th at 1396. Such facts must be

established by evidence that would be admissible at trial. Chavez v. Mendoza, 94



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Cal. App. 4th 1083, 1087 (2001). The evidence presented by the plaintiffmust

overcome any privilege or defense raised as to the claim. Flately v. Mauro, 39

Cal. 4th 299, 323 (2006) (Flately) (emphasis added). Accordingly, as a matter of

law, a plaintiffcannot demonstrate a probability of prevailing on the meritsif the

claim arises from absolutely privileged communications. See Walker v. Kiousis

93 Cal. App. 4th 1432, 1439-1440 (2007) (Walker) (emphasis added) [where

claims are barred by California Civil Code 47(b), plaintiff cannot show a

probability of prevailing on his claim in accordance with California Code of Civil

Procedure 425.16]. Nor can a Plaintiffs allegations of malice demonstrate a

probability of prevailing on the merits. Williams v. Taylor, 129 Cal. App. 3d 745

753-754 (1982) [absolute privilege cannot be defeated by a showing of malice].

Furthermore, the absolute privilege found in California Civil Code section 47(b)

has been found to be specifically protected by the Anti-SLAPP Statute. The

California Supreme Court has held that communications that fall under the

privilege of Civil Code section 47, subdivision (b) [citations omitted], are

equally entitled to the benefits of [California Code of Civil Procedure] section

425.16 Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1115

(1999) (Briggs). As discussed below, the Defamation, Intentional Infliction and

Negligent Infliction Claims arise from communications that are not only protected

by the terms of the Anti-SLAPP statute but are also privileged under California law

and, therefore, should be stricken.

ARGUMENT.V.

A. PLAINTIFFS DEFAMATION CLAIM AGAINST DEFENDANTS

JASON STILWELL AND SUSAN PAUL ARISES FROM ACTIVITYPROTECTED BY THE ANTI-SLAPP STATUTE.

While Plaintiffs Complaint rests on exceedingly vague allegations, what can be

gleaned from the Complaint establishes that Plaintiffs Defamation Claim is based

upon activity protected under the Anti-SLAPP Statute. Complaint, 34, 35 and



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37. Plaintiff alleges that each of the defendants caused oral and written

publications to third persons and the public regarding accusations that Plaintiff

committed crimes, that he violated City policies, that he was a poor performer, that

he deserved disciplinary action, that he was incompetent, and that he was

dishonest. Complaint, 34. As explained below, these alleged publications by

Mr. Stilwell and Ms. Paul necessarily fall squarely within the specified categories

of activities protected by the Anti-SLAPP Statute. Accordingly, Plaintiffs

Defamation Claim arises from protected activity and is subject to the Anti-SLAPP

Statute.

1. Mr. Stilwell and Ms. Pauls Allegedly Defamatory Statements

Were Made Before or in Connection With an Issue UnderConsideration by an Official Proceeding Authorized by Law.

As stated above, California Code of Civil Procedure section 425.16 protects

statements made before, or in connection with an issue under consideration by

a legislative, executive, or judicial proceeding, or any other official proceeding

authorized by law. Cal. Code Civ. Proc. 425.16(e)(1) and (e)(2). Here Plaintiffs

Defamation Claim arises from allegedly defamatory statements made by Mr.

Stilwell and Ms. Paul before, or in connection with an issue under consideration

by, the Administrative Investigation/Reprimand an official proceeding

authorized by law. Complaint, 34; Paul Dec. 14; Stilwell Decl. 5. California

Courts have explicitly held that internal government investigations are deemed

official proceedings authorized by law. Hansen v. Department of Corrections &

Rehabilitation, 171 Cal. App. 4th 1537, 1544 (2008) (Hansen) [Statements made

by California Department of Corrections And Rehabilitations personnel pertaining

to an internal investigation of the plaintiff, a former employee, were protected by

425.16]; see also Miller v. City of LA 169 Cal.App.4th 1373 (2008) [Citys

Investigation into Plaintiffs misconduct as a public employee falls under the Anti-

SLAPP Statute]; see also Castello v. City of Seattle, 2010 U.S. Dist. LEXIS



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127648 (W.D. Wash) [Fire Chiefs internal investigation of the plaintiffs

misconduct was an official proceeding under Californias Anti-SLAPP statute.]

Robinson v. Alameda County, 875 F. Supp. 2d 1029, 1049 (N.D. Cal. 2012)

(Robinson) [Internal Affairs investigation of supervisor is an official

proceeding under Californias Anti-SLAPP Statue.] California Courts have

further held that even [c]ommunications preparatory to or in anticipation ofthe

bringing of an official proceeding are within the protection of section 425.16.

Briggs, 19 Cal. 4th at 1115 [emphasis added] quoting Dove Audio, Inc. v

Rosenfeld, Meyer & Susman 47 Cal. App. 4th 777, 784 (1996) (Dove Audio);

See also Hansen, 171 Cal. App. 4th at 1544; See also Robinson v. Alameda

County, 875 F. Supp. 2d at 1049. As Mr. Stilwell and Ms. Pauls allegedly

defamatory statements concern the initiation or implementation of an internal City

investigation into the employee misconduct (i.e. the Administrative

Investigation/Reprimand), the Defamation Claim falls squarely within the scope of

California Code of Civil Procedure section 425.16, subdivisions (e)(1) and (e)(2)

and must be stricken. Paul Decl. 14; Stilwell Decl. 5.

2.

Mr. Stilwell and Ms. Pauls Allegedly Defamatory StatementsWere Made Before or in Connection With an Issue Under

Consideration at a Legislative Proceeding.

Based upon the vague allegations contained in the Defamation Claim, the

allegedly defamatory statements on which Plaintiff relies were made at, or in

connection with an issue under consideration at, City Council meetings. Paul Decl

15. Stilwell Decl. 6. As such, the alleged statements concern a legislative

proceeding and are protected under California Code of Civil Procedure section

425.16, subdivisions (e)(1) and (e)(2).

3.

Mr. Stilwell and Ms. Pauls Allegedly Defamatory

Communications Were Made in Connection with an Issue of

Public Interest.



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Although the Plaintiffs Defamation Claim assiduously avoids identifying any

specific statement made by Defendants, it is undeniable that all of the allegedly

defamatory statements concern the alleged misconduct and related job performance

of the Citys IT Director. See Complaint, 34; Paul Decl. 14. Stilwell Decl. 5.

As explained below, such topics are issues of public interest within the meaning of

the Anti-SLAPP Statute.

The Anti-SLAPP statute protects 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 oranissue ofpublic interest. Cal. Code

Civ. Proc. Section 425.16 (e)(3) [emphasis added]. California Courts grant

public interest an expansive definition within the meaning of the Anti-SLAPP

Statute. The courts ruling in Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th

1027, 1042 (2008) (Nygard) is instructive. After performing an exhaustive

review of both the Anti-SLAPP Statute and previous court holdings, the California

Court of Appeal determined, an issue of public interest within the meaning of

section 425.16, subdivision (e)(3) isany issue in which the public is interested. In

other words, the issue need not be significant to be protected by the Anti-SLAPP

statute it is enough that it is one in which the public takes an interest. Nygard

159 Cal. App. 4th at 1042 [emphasis original]. Moreover, legislative and

governmental activities are generally held to be issues of public interest

protected by the Anti-SLAPP Statute. SeeDu Charme v. International Broth. Of

Elec. Workers, Local 45, 110 Cal.App.4th 107, 115-116 (2003). Issues involving

the performance of government officials are of particular interest to the public. See

Matson v. Dvorak, 40 Cal. App. 4th 539, 548 (1995) [Public discussion about the

qualifications of those who hold or who wish to hold positions of public trust

presents the strongestpossible case for applications of the safeguards afforded by

the First Amendment. [Emphasis added].] See Conroy v. Spitzer, 70 Cal. App. 4th

1446, 1451 (1999) [Defendants statements obviously fell within the purview of



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section 425.16 because they addressed a candidate's qualifications and conduct in

office]; See generallyMcCoy v. Hearst Corp., 42 Cal. 3d 835, 859 (1986) [The

public possesses an independent interest in the qualifications and performance of

its public officials.] Indeed, the definition of public interest within the meaning

of the anti-SLAPP statute has been broadly construed to include not only

governmental matters, but also private conduct that impacts a broad segment of

society and/or that affects a community in a manner similar to that of a

governmental entity. [Citations.] Damon v. Ocean Hills Journalism Club, 85 Cal

App. 4th 468, 479 (2000) [emphasis added], citing Macias v. Hartwell, 55 Cal

App. 4th 669, 674 (1997).

Here, the allegedly defamatory statements concerned the IT Misconduct and

related job performance of the IT Director, which are (i) a governmental activities,

(ii) related to the conduct and performance of a management level employee and

(iii) a subject that necessarily affects the function and security of the entire City

computer network. Paul Decl. 14; Stilwell Decl. 5. Furthermore, the

Administrative and Criminal Investigations received both video and print media

coverage during the relevant time period. Burns Decl., 3-6, Exhs. A-D

Therefore, there can be no debate that the allegedly defamatory statements made

by Mr. Stilwell or Ms. Paul concerning the Plaintiffs alleged misconduct and job

performance were in connection with an issue of public interest and are

protected speech under the Anti-SLAPP Statute.

Furthermore, to the extent that Plaintiff asserts that any allegedly defamatory

communications were made to private individuals rather than to government

officials, such a distinction would not exclude [the statements] from the shelter of

the anti-SLAPP suit statute. Dove Audio , 47 Cal. App. 4th at 784; SeeAverill v

Superior Court 42 Cal. App. 4th 1170, 1176 (1996) [private conversations

regarding a public issue are protected under the SLAPP statute]; See alsoLudwig

v. Superior Court, 37 Cal. App. 4th 8, 15 (1995) [holding that statements made to



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encourage private individuals to speak out on a matter of public interest were

protected under the Anti-SLAPP Statute.]; See alsoWilcox v. Superior Court, 27

Cal. App. 4th 821, 822 (1994) [holding that statements made to private individuals

requesting them help pay for litigation costs were protected under the Anti-SLAPP

Statute].

Mr. Stilwell and Ms. Paul have met their initial burden by demonstrating that

the conduct underlying Plaintiffs Defamation Claim fits into not one, but many of

the protected categories set forth in the Anti-SLAPP Statute. Therefore, pursuant to

the Anti-SLAPP Statute, the burden now shifts to the Plaintiff to establish a

probability of succeeding on the merits of the Defamation Claim. Plaintiff will be

unable to do so.

B. PLAINTIFF CANNOT SHOW A PROBABILITY OF SUCCEEDING

ON THE MERITS AS TO THE DEFAMATION CLAIM AGAINST

JASON STILWELL AND SUSAN PAUL

As explained above, once a defendant has made a showing that the a claim

arises from protected activity under the Anti-SLAPP Statute, the burden shifts to

the plaintiff to demonstrate that the challenged claim has a reasonable probability

of succeeding at trial. Nevallier, 28 Cal. 4th at 88-89. Accordingly, Plaintiff must

overcome any privilege or defense raised as to the claim. Flately, 39 Cal. 4th 299

323 (2006). However, as a matter of law, the plaintiff cannot demonstrate a

probability of prevailing on the merits if the claim arises from absolutely

privileged communications. See Walker, 93 Cal. App. 4th at 1513-1514. Here

Plaintiffs Defamation Claim against Mr. Stilwell and Ms. Paul arises from activity

that is absolutely privileged under California Civil Code section 47(b) (Civil Code

Section 47(b)) and therefore should be stricken from the Complaint. Furthermore

Plaintiff cannot overcome the privilege established by Civil Code Section 47(a).



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1. Any Allegedly Defamatory Statements Made by Defendants Jason

Stilwell and Susan Paul are Absolutely Privileged Pursuant to

Civil Code Section 47(b) and Are Not Actionable.

Civil Code section 47(b) establishes an absolute privilege for statements

made in any (1) legislative proceeding, (2) judicial proceeding, (3) in any otherofficial proceeding authorized by law Cal. Civ. Code 47(b); Hagberg v

California Federal Bank , 32 Cal. 4th 350, 360 (2004) (Hagberg). The privilege

is considered an absolute one because it protects publications made with actual

malice or with the intent to do harm. Pettitt v. Levy, 28 Cal. App. 3d 484, 488

(1972) (Pettitt), quotingAlbertson v. Raboff 46 Cal. 2d 375, 379 (1956); Rader

v. Thrasher, 22 Cal. App. 3d 883, 887, (1972); See also Hagberg v. California

Federal Bank, 32 Cal. 4th at 360.

First, the defamatory statements alleged by Plaintiff are absolutely

privileged under Civil Code section 47(b) because they were made before an

official proceeding. The California Supreme Court has explained that the

official proceeding privilege of Civil Code Section 47(b) is interpreted broadly

in order to protect communication to or from governmental officials which may

precede the initiation of formal proceedings. Hagberg v. California Federal Bank

32 Cal. 4th at 364. Here, the allegedly defamatory statements were made by Mr

Stilwell and Ms. Pauls as governmental officials and/or to other government

officials concerning the initiation and implementation of the Administrative

Investigation and/or the Reprimand. Paul Decl. 1;. Stilwell Decl. 5. Therefore

the conduct targeted by Plaintiff is absolutely privileged.

Second, the defamatory statements alleged by Plaintiff are absolutelyprivileged under Civil Code section 47(b) because they were made in a legislative

proceeding. Courts have held that Civil Code Section 47(b) covers[a]ny

publication made in a city planning commission or city council proceedings

Pettitt, 28 Cal. App. 3d at 488. Here, to the extent Mr. Stilwell and Ms. Pauls



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allegedly defamatory communications were made at City Council meetings, they

are absolutely privileged. Paul Decl. 15. Stilwell Decl. 6.

2.

The Allegedly Defamatory Communications made by Defendants

Jason Stilwell and Susan Paul are Privileged Under California

Civil Code Section 47(a)

California Civil Code Section 47(a) establishes a privilege for statements made

[i]n the proper discharge of an official duty. Here, the initiation and supervision

of investigations into possible misconduct by the IT Director is within the

supervisorial duties of Ms. Paul as Administrative Services Director. Paul Dec.

17, Exh. B; RJN 1, Exh. A. The determination of disciplinary action against the

IT Director, as well as the general supervision of Ms. Paul in her role as

Administrative Services Director each fall within the duties of Jason Stilwell as

City Administrator. Stilwell Decl. 8; RJN 1, Exh. A. Therefore, to the extent

Mr. Stilwell and Ms. Pauls allegedly defamatory communications concern the

Administrative Investigation/Reprimand, such communications occurred in the

proper discharge of their respective duties and are privileged.

C. PLAINTIFFS INTENTIONAL INFLICTION AND NEGLIGENT

INFLICTION CLAIMS AGAINST DEFENDANTS JASON

STILWELL AND SUSAN PAUL ARISE FROM ACTIVITIES THATARE PROTECTED BY THE ANTI-SLAPP STATUTE

Plaintiffs Intentional Infliction and Negligent Infliction Claims arise from

the same defamatory statements alleged in the Defamation Claim. Complaint, 45

and 46, lns. 24-25 and 49-50. Therefore, the Intentional Infliction and

Negligent Infliction Claims are subject to the Anti-SLAPP Statute because, as

explained above, the alleged defamatory statements were made before, or in

connection with an issue under consideration by, a legislative or other official

proceeding, and/or were made in connection with an issue of public interest.

Although the Intentional Infliction and Negligent Infliction Claims also

include allegations of possible unprotected conduct regarding the Search Warrant



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Execution, California courts have held that a claim will nonetheless be subject to

the Anti-SLAPP statute unless the protected conduct is merely incidental to the

unprotected conduct. Peregrine Funding, Inc. v. Sheppard Mullin Richter &

Hampton LLP, 133 Cal. App. 4th 658, 672 (2005); quotingMann v. Quality Old

Time Service, Inc., 120 Cal. App. 4th 90, 103 (2004); See Complaint 46, 49. In

so holding, the courts have sought to ensure that a Plaintiff cannot frustrate the

purposes of the SLAPP statute through a pleading tactic of combining allegations

of protected and non-protected activity under the label of one cause of action

Fox Searchlight Pictures, Inc. v. Paladino 89 Cal App. 4th 294, 308 (2001). Here,

the defamation allegations are central to each claim, not merely incidental,

especially considering Plaintiff affirmatively pleads that the alleged conduct

related to the search warrant is in addition to the defamation allegations

Complaint, 46, ln. 25 [emphasis added]. Accordingly, the entirety of each of

Plaintiffs Intentional Infliction and Negligent Infliction Claims is subject to the

Anti-SLAPP Statute.

D. PLAINTIFF CANNOT SHOW A PROBABILITY OF SUCCEEDING

ON THE MERITS REGARDING THE INTENTIONAL INFLICTION

AND NEGLIGENT INFLICTION CLAIMS AGAINSTDEFENDANTS JASON STILWELL AND SUSAN PAUL

Again, in order for plaintiff to show that the challenged claims have a

reasonable probability of succeeding at trial, Plaintiff must overcome any privilege

or defense raised as to those claims. Flately, 39 Cal. 4th at 323. As discussed in

detail above, Plaintiff cannot establish a probability of succeeding on his

Defamation Claim because Mr. Stilwell and Ms. Pauls statements are privileged

under California Civil Code Section 47(a) and (b). Accordingly, to the extent the

Intentional Infliction and Negligent Infliction Claims arise from any alleged

defamatory communications, those claims also fail.



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As to the allegations contained in the Intentional Infliction and Negligent

Infliction Claims that are unrelated to allegedly defamatory statements explained

above, Plaintiff cannot overcome the immunity created by California Government

Code Section 821.6 (Section 821.6) which states 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." See also Amylou R. v. County of

Riverside, 28 Cal. App. 4th 1205, 1208-1209 (1994) (Amylou). California

Courts have held that Section 821.6 includes investigation of alleged wrongdoing

and for any acts done to institute and prosecute such formal proceedings. Hansen,

171 Cal. App. 4th at 1547, citing Amylou R. v. County of Riverside, 28 Cal. App

4th at 12091210, and Kemmerer v. County of Fresno 200 Cal. App. 3d 1426,

14361437 (1988). Here, Plaintiff alleges that in the course of executing a

judicially issued Search Warrant agents of Respondents/Defendants City of

Carmel, including Respondent/Defendant Susan Paul, entered Petitioner/Plaintiffs

home, refused to leave, and participated in confiscating Petitioner/Plaintiffs

property. Because Ms. Pauls conduct was part of the Administrative

Investigation (i.e. placing Plaintiff on administrative leave), the conduct is part of

an investigation into alleged wrongdoing and falls within the scope of the

immunity provided by Section 821.6. Paul Decl. 12.

Plaintiffs Intentional Infliction and Negligent Infliction Claims are also

barred by co-worker immunity. California courts have held that [E]mployees

regardless of their scope of employment or personal motives, cannot be

individually liable for their acts or words relating to personnel actions unless such

liability arises from statute. Sheppard v. Freeman, 67 Cal. App. 4th 339, 342-343

349 (1998). Because Mr. Stilwell and Ms. Paul are fellow City employees of

Plaintiff and their alleged conduct concerns a personnel action (the Administrative



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Investigation/Reprimand), Plaintiff must establish an independent statutory basis

for liability, which he cannot do. Paul Decl. 1, 14, 17; Stilwell Decl. 1, 5, 8.

In addition to the immunity defenses discussed above, Plaintiff also cannot

overcome the defense of workers compensation preemption under the California

Workers Compensation Act (WCA). Cal. Lab. Code 3200 et seq. It is well

established that workers compensation is the exclusive remedy against an

employer for injuries sustained and arising out of the course of employment. Lab

Code, 3600, 3602; Torres v. Parkhouse Tire Service, Inc. 26 Cal. 4th 995, 1002

(2001) (Torres). The so-called exclusivity rule also applies when the alleged

injury was caused by another employee who was acting within the course and

scope of his or her employment. Ibid.; Lab. Code 3601(a) [the right to recover

such compensation, pursuant to the provisions of this division is, except as

specifically provided in this section, the exclusive remedy for injury or death of an

employee against any other employee acting within the course and scope of his

employment].

To be within the scope of employment, the incident giving rise to the injury

must be an outgrowth of the employment, the risk of injury must be inherent in the

workplace, or typical of or broadly incidental to the employers enterprise.

Torres, 26 Cal. 4th at 1008. WCA preemption extends to injuries arising from

alleged misconduct that is a normal part of the employment relationship, including

actions such as demotions, discipline, involuntary termination, and investigations

of employee conduct, including interrogation. Charles J. Vacanti, M.D., Inc. v.

State Compensation Insurance Fund, 24 Cal. 4th 800, 821 (2001). This is even true

in cases where the employer is alleged to have inflicted emotional distress

intentionally or negligently. Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 3d

148, 159-160 (1987); see also Semore v. Pool, 217 Cal. App. 3d 1087, 1105 (1990)

(affirming dismissal of negligent infliction cause of action, in part, because [a]n

employers supervisory conduct is inherently intentional.)



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Here, Plaintiffs emotional distress claims against Mr. Stilwell and Ms. Paul

are based entirely on actions taken by them related to the Administrative

Investigation (e.g. placing the Plaintiff on administrative leave) or the Reprimand,

which are the very types of actions that courts have ruled are a normal part of the

employment relationship. Paul Decl. 12, 14. Stilwell Decl. 5. Accordingly

Plaintiffs Intentional Infliction and Negligent Infliction Claims are barred by the

exclusivity rule.

E. PLAINTIFFS DEFAMATION, INTENTIONAL INFLICTION AND

NEGLIGENT INFLICTION CLAIMS AGAINST THE CITY ARISE

FROM ACTIVITIES THAT ARE PROTECTED BY THE ANTI-

SLAPP STATUTE

In addition to the protections to the individual defendants discussed above, the

Anti-SLAPP Statute also protects governmental entities, such as the City. See San

Ramon, 125 CA 4th at 353; Bradbury, 49 Cal. App. 4th at 1114. Although

Plaintiff fails to identify the other agents of the City by whom the allegedly

defamatory statements were made, the arguments made above regarding Mr

Stilwell and Ms. Paul apply equally to the City because (i) Plaintiff alleges the City

made the same allegedly defamatory statements as Mr. Stilwell and Ms. Paul and

(ii) Mr. Stilwell and Ms. Paul are agents of the City, as City Administrator and

Administrative Services Director, respectively. See Complaint, 34, 35, 37, 45,

and 46, Lns.25-26 and 49-50; Paul Decl. 1, 17; Stilwell Decl. 1, 8

Accordingly, as explained above, the allegedly defamatory statements necessarily

fall squarely within the enumerated categories of activities protected by the Anti-

SLAPP Statute. The Plaintiffs Defamation, Intentional Infliction and Negligent

Infliction Claims against the City arise from protected activity and are subject to

the Anti-SLAPP Statute.



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F. PLAINTIFF CANNOT SHOW A PROBABILITY OF SUCCEEDING

ON THE MERITS REGARDING THE DEFAMATION,

INTENTIONAL INFLICTION AND NEGLIGENT INFLICTION

CLAIMS AGAINST THE CITY

Just as Plaintiff cannot support the probable success of the Defamation,

Intentional Infliction and Negligent Infliction Claims against Mr. Stilwell and Ms

Paul due to the inability to overcome privileges and defenses, Plaintiff similarly

cannot establish a probability of succeeding on the merits against the City. Flately,

39 Cal. 4th at 323. Pursuant to California Government Code Section 815.2,

subdivision (b),[e]xcept 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. To the extent that Mr.

Stilwell, Ms. Paul and the unknown additional city agents are immune from

liability, the City is likewise immune.

Additionally, as noted above, workers compensation is the exclusive

remedy against an employer for injuries sustained and arising out of the course

employment. Cal. Lab. Code, 3600, 3602; Torres, 26 Cal. 4th at 1002. As

stated above, Plaintiffs emotional distress claims against the City are based

entirely on actions taken by City employees related to the Administrative

Investigation (e.g. placing the Plaintiff on administrative leave) or the Reprimand,

which are actions that the courts have ruled are a normal part of the employment

relationship. Paul Decl. 12, 14. Stilwell Decl. 5. Accordingly, Plaintiffs

Intentional Infliction and Negligent Infliction Claims against the City are barred by

the exclusivity rule.

G.

DEFENDANTS ARE ENTITLED TO RECOVER ATTORNEYS

FEES.

California Code of Civil Procedure section 425.16(c) states, in part, a

prevailing defendant on a special motion to strike shall be entitled to recover his or

her attorneys fees and costs. The fee recovery is mandatory with regard to a



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defendant who brings a successful Anti-SLAPP motion. See Ketchum v. Moses

24 Cal. 4th 1122, 1131 (2001). Furthermore, Federal Courts have held that they

are bound by the requirement to award attorneys fees to a defendant who

successfully brings an Anti-SLAPP motion. See Whitty v. First Nationwide

Mortgage Corporation, 2007 U.S. Dist. LEXIS 12988 (S.D. Cal. 2007). Therefore

Defendants are entitled to the recovery of their attorneys fees incurred to bring

this motion.

CONCLUSIONVI.

As set forth in detail above, Plaintiff is attempting to sue the Defendants for

exercising their free speech rights and carrying out their proper official duties of

investigating misconduct. Accordingly, Plaintiffs Defamation, Intentional

Infliction and Negligent Infliction Claims are subject to the Anti-SLAPP Statute

because they improperly chill the exercise of constitutionally protected rights

Furthermore, Plaintiff cannot satisfy his burden of showing a probability of

succeeding at trial because the targeted conduct is absolutely privileged

Defendants respectfully request that the Court grant this Anti-SLAPP motion and

dismiss the Plaintiffs Fourth Cause of Action for Defamation, Fifth Cause of

Action for Intentional Infliction of Emotional Distress and Sixth Cause of Action

Negligent Infliction of Emotional Distress with prejudice, and award attorneys

fees in favor of Defendants and against Plaintiff.

DATED: August 1, 2014 STRADLING YOCCA CARLSON &RAUTHA Professional Corporation

By: /s/ Allison E. BurnsJeffrey A. DinkinAllison E. BurnsDavid C. Palmer

Attorneys for DefendantsCITY OF CARMEL-BY-THESEA; JASON STILWELL; SUSANPAUL



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L AWYERS

NE W POR T BE AC HSERVICE LIST

DOCSOC/1672298v5/102910-0006

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CERTIFICATE OF SERVICE

I certify that on August 1, 2014 the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered

users or, if they are not, I hereby certify that a true and correct copy was served inthe manner set forth below:

BY EMAIL: by transmitting via electronic mail the document(s) listed

above to the email address(es) set forth below. BY FACSIMILE: by transmitting via facsimile the document(s) listed

above to the facsimile number(s) set forth below. I certify that saidtransmission was completed without error and that a report was generated by

facsimile machine (949) 725-4100 which confirms said transmission.

BY OVERNIGHT DELIVERY: by placing the document(s) listed abovein a sealed envelope with postage thereon fully prepaid, and delivering viaovernight courier and addressed as set forth below, respectively.

BY MAIL: by placing the document(s) listed above in a sealed envelope

with postage thereon fully prepaid, in the United States Mail in NewportBeach, California, addressed as set forth below.

BY PERSONAL DELIVERY: by causing personal delivery byNationwide Legal, Inc. of the document(s) listed above to the person(s) a

the address(es) set forth below

SEE ATTACHED SERVICE LIST

I am readily familiar with the firms practice of collection and processingcorrespondence for mailing. Under that practice it would be deposited with the

U.S. Postal Service on that same day with postage thereon fully prepaid in theordinary course of business. I am aware that on motion of the party served, serviceis presumed invalid if postal cancellation date or postage meter date is more than

one day after the date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of Californiathat the above is true and correct.

Executed on August 1, 2014, at Newport Beach, California.

/s/ Karen M. HardyKaren M. Hardy



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SERVICE LIST

Steven McInchak v. City of Carmel-by-the-Sea, et al.

Monterey County Superior Court Case No. M128062

Michelle A. Welsh

Stoner, Welsh & Schmidt413 Forest AvenuePacific Grove, CA 93950-4201

Telephone: (831) 373-1993Facsimile: (831) 373-1492

Attorney for Plaintiff/Petitioner

STEVEN MCINCHAK



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Case5:14-cv-03084-RMW Document10-1 Filed08/01/14 Page1 of 20

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STRADLING YOCCA

CARLSON

RAUTH

LAWYERS

NEWPORT B[ACII

JEFFREY A. DINKIN, SBN 111422

jdinkin@sycr. com

ALLISON E. BURNS,

SBN

198231

aburns@sycr. com

DAVID C. PALMER, SBN 251609

dpalmer@sycr. com

Exempt from filing fee

Government Code 6103

STRADLINGYOCCA CARLSON RAUTH

A Professional Corporation

800 Anacapa Street, Suite A

Santa Barbara, California 931 0 1

Telephone: (805) 730-6800

Facsimile: (805) 730-6801

Attorneys for Defendants

CITY OF CARMEL-BY-THE SEA;

JASON STILWELL; SUSAN

PAUL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE

STEVEN MCINCHAK

Petitioner/Plaintiff,

v.

CITY OF CARMEL-BY-THE-SEA,

JASON STILWELL, CITY

ADMINISTRATOR OF THE CITY OF

CARMEL-BY-THE-SEA, SUSAN

PAUL, ADMINISTRATIVE

SERVICES DIRECTOR OF THE

CITY OF CARMEL-BY-THE-SEA;

and DOES 1 through 50, inclusive,

Defendants.

CASE NO. 5:14-cv-03084 (HRL)

DECLARATION OF

SUSAN PAUL

IN

SUPPORT

OF

DEFENDANTS

SPECIAL

MOTION TO

STRIKE

{Filed concurrent ) with Defendants

Special Motion to Strike; Declarations o

Jason Stilwell nd Allison E. Burns;

Request for Judicial Notice; nd

[Proposed] Order]

DATE: September 30 2014

TIME: 10:00 a.m.

COURTROOM:

2

Action Filed:

Trial Date:

June 4 2014

Not Set

DECLARATION OF SUSAN PAUL 5:14-cv-03084 (HRL)

DOCSOC/l673984vl/l 02910-0006


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STRADLING YOCCA

CARLSON

RAUTH

LAWYERS

NEWPORT BEACH

DECLARATION OF SUSAN PAUL

I, Susan Paul, declare as follows:

1 I am the Administrative Services Director

ofthe

City

of

Carmel-by-the-Sea

( City ) and have acted in this capacity during all

of

the time periods

referenced herein. I have personal knowledge as to all facts stated herein and

if called to testify as a witness, I could and would do so.

2. This Declaration is made in support of Defendants' Special Motion to Strike

the Fourth, Fifth and Sixth Causes

of

Action

of

Plaintiffs Petition

Complaint Pursuant to California Code

of

Civil Procedure Section 425.16

3. Plaintiff Steven Mclnchak ( Plaintiff') has been employed by the City as its

Infonnation Systems Network Manager ( IT Director ) since 1997 and is an

at-will employee at the time of this declaration. A true and correct copy of

Plaintiffs employment agreement with the City is attached hereto as

Exhibit A.

4. On or about January 22, 2013, I began receiving reports from various City

staff members regarding their city computers, which reports caused me to

become concerned regarding the integrity

of

the City's computer network,

including the security thereof.

5

On or about February 27, 2013, the City retained computer forensic expert

Mark Alcock ( Mr. Alcock ) to survey the City's computer network and

investigate the cause

of

the reported issues.

6. In or about March 2013, I became aware of possible misconduct by the

Plaintiff including but not limited to possible unauthorized access to City

computers, unauthorized access to electronically stored files on City

employees' computers and unauthorized transmittal

of

confidential

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STRADLING YOCCA

CARLSON RAUTH

LA\\ YLRS

NEWPORT BE.\CII

information from those computers to himself ( IT Misconduct ).

7 Thereafter, two separate investigations

of

the IT Misconduct took place; one

into Plaintiffs possible criminal activity ( Criminal Investigation ), and the

second into the IT Misconduct and related

job

performance

of

Plaintiff in his

capacity as an employee of the City ( Administrative Investigation ).

8 The Criminal Investigation was conducted by the Carmel Police Department

in

consultation with the Monterey County District Attorney's Office and

computer forensic experts retained by the City.

9. On or about May 30, 2013, I gave Plaintiff a written reprimand concerning

conduct issues unrelated to the IT Misconduct (the Reprimand ).

10. The Carmel Police Department worked with the Monterey County District

Attorney to obtain a search warrant for Plaintiffs residence. ( Search

Warrant ).

11. On June 5, 2013, Carmel Police officers, including the Carmel

Chief of

Police, together with Monterey County Sheriffs Deputies, executed the

Search Warrant on Plaintiffs residence ( Search Warrant Execution ).

12. At the request

of

the Carmel Police Chief, I briefly accompanied the

officers during part

of

the Search Warrant Execution in order to formally

place the Plaintiff on administrative leave with pay and ensure the integrity

of the City's security systems by taking possession of Plaintiffs city phone,

city keys and laptop. The only communication I had with the Plaintiff was to

(i) advise him that he was being placed

on

administrative leave and (ii)

request that he hand over to me his City cell phone, keys and laptop. I had

no further communication with the Plaintiff during the Search Wanant

Execution. Immediately upon finishing the foregoing tasks, I went to the

-3-


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STRADLING YOCCA

CARLSON RAUTH

LAWYERS

NEWPORT BEACH

front door of Plaintiff's residence to wait for further instruction. Once the

Carmel Police Chief confirmed that the remaining officers did not require

additional information or assistance from me, I left Plaintiff 's residence.

13. Mr. Alcock, at the request

of

the Carmel Police Chief, accompanied the

officers and deputies during part of the Search Warrant Execution in order to

help locate certain computer equipment and make an immediate live

acquisition image

of

the contents of the computer equipment.

14.

To

the best of my present recollection, I have only made statements related

to any of the topics on which Plainti ff bases his allegations of Defamation in

the Complaint

i.e.

Plaintiff committed crimes, that he violated City

policies, that he was a

poor performer, that he deserved disciplinary action,

that he was incompetent, and that

he

was dishonest ) in connection with (i)

the initiation and implementation

of

the Administrative Investigation

or

(ii)

the Reprimand.

15. To the best

of

my present recollection, I have made statements related to

any of the topics on which Plaintiff bases his allegations of Defamation

in

the Complaint

i.e.

Plaintiff committed crimes, that he violated City

policies, that he was a

poor

performer, that

he

deserved disciplinary action,

that he was incompetent, and that he was dishonest ) at one or more City

Council Meetings in connection with the Administrative Investigation.

16. Beginning

on

June 5, 2013 and continuing through the date of this

declaration, the City has retained Plaint iff on administrative leave

with

pay

pending the completion of the Administrative Investigation. The

Administrative Investigation involves forensic computer analysis of the

City s expansive computer network, including arduous and complex expert

analysis and data mining.

-4-


DOCSOC/1673984vl/l 02910-0006


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STRADLING YOCCA

CARLSON R.\UTH

1 .\WYEkS

NEWfH [\T

Bl ACH

17. The

IT

Director i.e. the Plaintiff) reports directly to me as Administrative

Services Director.

Administrative Services Director is the Director 's

Department Manager for purposes of the Municipal Code Chapter 2.52.

Attached hereto as Exhibit B is a true and correct copy

of

the job

description for my position as Administrative Services Director.

18.

On

December 11,2013, an information firewall was established that

precluded the City from participating in the Criminal Investigation, limiting

the scope

of

the City's involvement to the Administrative Investigation only.

I declare under penalty

ofperjury

under the laws

of

the United States and the

State of California that the foregoing is true and correct.

Executed this

::Zl:5t day

of July, 2014 at

} _ ~ a l i f o r n i a

Susan Paul

-5-

DECLARATION OF SUSAN PAUL

DOCSOC/16739 4v

1/102910-0006


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Case5:14-cv-03084-RMW Document10

Mcinchak Defendants' Notice of Motion and Special Motion to Strike

Documents

Transcript of Mcinchak Defendants' Notice of Motion and Special Motion to Strike