The California Department of Forestry and Fire Protection (Cal Fire) employed Corey Baughn as a firefighter at its Mendocino Unit. Cal Fire fired Baughn in 2009 for sexually harassing a female subordinate.

Baughn appealed his termination to the State Personnel Board. Before the Personnel Board considered the matter, Baughn and Cal Fire stipulated to a settlement in which Baughn agreed to withdraw his appeal, resign from Cal Fire, and not seek or accept employment with Cal Fire again. Cal Fire, in turn, agreed to accept the resignation and remove references to its disciplinary action from Baughn's personnel file. The Personnel Board approved the stipulation.

Baughn then began working for the Ukiah Valley Fire District as a volunteer firefighter and then as a temporary employee. At the time, Ukiah Valley had an agreement with Cal Fire to assign Ukiah Valley personnel to a Cal Fire facility during the winter. Therefore, as part of his job duties with Ukiah Fire, Baughn would occasionally have to enter Cal Fire facilities.

Christopher Rowney, unit chief of Cal Fire's Mendocino Unit, learned that Baughn was working for Ukiah Valley, and would likely be present in Cal Fire facilities when the victim of Baughn's earlier harassment would be present. As a result, Rowney wrote a letter to Ukiah Valley's fire chief ordering Baughn not to be present in any Cal Fire facility. Ukiah Valley's governing board then pressured Ukiah Valley's chief to terminate Baughn, which he did.

Baughn and his union sued Cal Fire for breach of the written settlement stipulation, breach of implied covenant of good faith and fair dealing, and intentional and negligent interference with prospective economic advantage. Cal Fire filed an anti-SLAPP motion to strike the complaint as to the union arguing that the complaint arose from protected speech by Rowney. The trial court denied the anti-SLAPP motion and Cal Fire appealed.

The anti-SLAPP statute was developed to provide a remedy to dispose of claims that are only intended to chill the valid exercise of constitutional rights. As applied to this case, under the anti-SLAPP statute, Cal Fire must show that Baughn's lawsuit arose from Rowney's delivery of the letter to the Ukiah Valley Fire Chief and that Rowney's act was in furtherance of the right of petition or free speech in connection with a public issue.

The trial court denied the anti-SLAPP motion based on the determination that delivery of the letter was an act in furtherance of unprotected speech since the speech did not concern a public issue or issue of public interest, which is required under the anti-SLAPP statute.

The Court of Appeal emphasized that Rowney's action must have itself been in furtherance of free speech. The Court then identified four different categories of protected activity, including conduct in furtherance of the exercise of the right to petition or the right to free speech in connection with a public issue or an issue of public interest. According to Cal Fire, Rowney's letter was in furtherance of his free speech rights in that it addressed a matter of widespread public interest – protecting public employees against sexual harassment. However, the Court of Appeal rejected Cal Fire's argument and determined that Rowney's letter was not made in connection with a public issue or an issue of public interest. The Court laid out five factors to consider when deciding whether speech is of public interest for purposes of an anti-SLAPP motion: (1) is the interest mere curiosity, (2) is the speech something of concern to a substantial number of people, (3) is there a degree of closeness between the challenged speech and the asserted public interest, (4) is the focus of the speaker's conduct the public interest rather than mere effort to further a private controversy and (5) did the party making the speech create their own defense by making the claimant a public figure? The Court also cautioned that a party cannot turn a private matter into a matter of public interest by merely communicating it to a large number of people.

The Court determined that Rowney's speech only concerned whether Baughn could access a building used by a co-worker he allegedly sexually harassed. It involved a small audience and did not occur in the context of an ongoing dispute with Baughn, or sexual harassment in the workplace. Furthermore, the Court determined the letter did not reference Cal Fire's discipline of Baughn, the settlement, or the reason for the newly identified concern and it was treated as a confidential matter when it was hand delivered to Ukiah Valley. The Court also determined that, to the extent Rowney was fulfilling any statutory duty applicable to Cal Fire, he was applying a policy to a confidential matter, not exercising speech on an issue of public concern.

The Court held that Cal Fire failed to establish the matter arose for the exercise of protected speech under the anti-SLAPP statute. The Court also found the trial court improperly awarded attorney fees to Baughn because although he was the prevailing party, he did not show the anti-SLAPP motion was frivolous or intended to cause unnecessary delay as is required for a plaintiff to recover attorney's fees under the anti-SLAPP statute.

Note:

This case may be instructive for First Amendment retaliation claims although the analysis under anti-SLAPP motions is different. The case instructs that general claims may not be sufficient to show that speech concerned a public issue, or an issue of public interest.

Baughn v. Department of Forestry and Fire Protection (2016) 246 Cal.App.4th 328