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Last week I wrote about a Superior Court decision in Riverside County holding that factfinding under the MMBA applies only to full contract negotiations.  (Click here for post)  In that post, I noted that one fascinating aspect of that case was that PERB had filed an anti-SLAPP motion against the County for challenging PERB’s factfinding order.

A SLAPP action is a “Strategic Lawsuit Against Public Participation.”  The purpose of a SLAPP action is to chill the valid exercise of constitutionally protected speech and to burden the opposing side with the cost of a legal defense.  For example, a developer might file a lawsuit against a local citizen’s group opposed to the developer’s housing project.  In California, the Legislature has enacted an anti-SLAPP statute designed specifically to combat SLAPP actions.  (Code of Civ. Proc., §425.16.)

I have filed several anti-SLAPP motions on behalf of public agencies.  They are a terrific tool to quickly dispose of lawsuits targeting constitutionally protected speech.  For example, I have had an employee bring a defamation cause of action against a public agency for seeking a workplace violence TRO against the employee.  The agency’s filing of a TRO is absolutely protected speech and the employee’s lawsuit was quickly dismissed after our anti-SLAPP motion was filed.  That’s an example of how an anti-SLAPP motion is intended to be used.

However, until the Riverside case, I had never heard of a public agency filing an anti-SLAPP motion against a litigant seeking to challenge a decision of the agency.  The action at issue was PERB’s order that the County submit to factfinding.  At that time the County could not appeal the factfinding order to the Board, so it filed a writ of mandamus in Superior Court.  PERB responded by bringing an anti-SLAPP motion.  In the motion, PERB argued that:

There can be no doubt that the County’s complaint-seeking an order prohibiting PERB from sending parties to factfinding and declaring that PERB “may not, in the future, order Petitioner into factfinding” when the parties differences “do not arise from negotiations over an MOU”-is wholly within the purview of California’s Anti-SLAPP statute. Whether cloaked in a frivolous and unfounded constitutional argument or termed as “a dispute over the interpretation and validity of … Assembly Bill 646,” the County’s Complaint must be stricken, because it challenges PERB’s exercise of statutorily required administrative duties and protected activities.

Fortunately, the Court rejected PERB’s anti-SLAPP motion.  The Court held that the gravamen of the County’s action was a challenge to the constitutionality of AB 646.  Thus, the Court said that the County’s action was not aimed at chilling PERB’s right to free speech as defined by the anti-SLAPP statute.  The Court also denied, without prejudice, the County’s request for sanctions against PERB.


  1. There is no doubt in my mind that the Court’s rejection of PERB’s anti-SLAPP motion was correct.  Even though the County won, I remain bothered that PERB even brought the motion.  Specifically, I find PERB’s assertion that filing such a motion was appropriate because the County was challenging, “PERB’s exercise of statutorily required administrative duties and protected activities” to be extremely problematic.  Even if PERB’s statement was true, PERB should not have brought the anti-SLAPP motion.  PERB functions like a court.  So it shouldn’t be a surprise to PERB that its decisions or actions might be challenged by litigants.  As a quasi-judicial administrative agency, I think PERB should take the higher ground and avoid actions—such as filing an anti-SLAPP motion—that might prevent litigants from bringing legitimate actions.
  2. This case illustrates that point.  The County’s action obviously was not “frivolous” since the Court ruled in its favor.  Indeed, in PERB’s anti-SLAPP motion it boldly asserted that, “It is simply impossible for the County to meet its burden under CCP section 425.16 and establish by admissible and competent evidence that it could prevail at trial and obtain an injunction or obtain a determination that factfinding is inappropriate in the instant case.”  (Emphasis in the original.)  Well, apparently it is possible.  And that just goes to show why PERB should not have brought the anti-SLAPP motion in the first place.

This entry was posted in Court Decisions, PERB Decision, PERB News.

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