Vang et al v. Lopey, et al.,

Filing 50

ORDER signed by District Judge John A. Mendez on 01/04/17 ORDERING that Defendant's 16 Special Motion to Strike is DENIED. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE VANG; WANG CHANG; JOUA
CHAO MOUA; ALEXANDER VANG;
DANG XIONG; DOLLARSAI YURGH;
JOUA YENG VANG; MANISY MOUA;
POUA VANG; RICHARD VANG; and
DOES 1-200,

No.

2:16-cv-2172-JAM-CMK

ORDER DENYING DEFENDANTS’ MOTION
TO STRIKE

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Plaintiffs,
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v.
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SHERIFF JON LOPEY,
individually and in his
capacity as Sheriff for the
COUNTY OF SISKIYOU; COLLEEN
SETZER; individually and in
her capacity as Clerk for the
COUNTY OF SISKIYOU; ALEX
NISHIMURA, individually and
in his capacity as an agent
of the CALIFORNIA SECRETARY
OF STATE; the COUNTY OF
SISKIYOU; CALIFORNIA
DEPARTMENT OF FORESTRY AND
FIRE PROTECTION; Does 1-20,
in their individual capacity;
and DOES 1-20, inclusive,
Defendants.

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Defendants Sheriff Jon Lopey, County Clerk Colleen Setzer,
and the County of Siskiyou (collectively “Defendants”) filed a
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special motion to strike Plaintiffs’ complaint pursuant to

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California Code of Civil Procedure Section 425.16

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(“Section 425.16” or “the anti-SLAPP statute”).

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Plaintiffs oppose the motion.

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forth below, the Court DENIES Defendants’ motion to strike. 1

ECF No. 30.

ECF No. 16.

For the reasons set

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiffs, ten members of the Hmong community, allege that
“[t]he local government in Siskiyou County is engaged in a

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systematic campaign to deprive Plaintiffs, and other members of

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the Hmong community, of their right to vote, and their right to

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the exclusive use and enjoyment of their private property.”

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Compl. ¶ 1, ECF No. 1.

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“[D]efendants conspired to disenfranchise Plaintiffs by

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challenging their status as California residents through racially

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discriminatory implementation and enforcement of County

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Ordinances, and as to some plaintiffs, threatened prosecution.”

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Compl. ¶ 2.

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Plaintiffs further allege that

In the June 2016 primary election, the voters of Siskiyou

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County approved two ordinances regarding the cultivation of

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marijuana.

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disproportionately targeted the Hmong community in enforcing the

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new ordinances.

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Defendants executed search warrants on various properties and

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that during the searches “residents who were present were

Compl. ¶ 4.

Plaintiffs allege that Defendants have

Compl. ¶ 4.

Plaintiffs also allege that

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for November 15, 2016.
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handcuffed and held at gunpoint while their properties were

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ransacked.”

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marijuana plants during the searches.

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Additionally, each Plaintiff alleges that individuals with guns

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came onto their property to investigate voter fraud.

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12-21.

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Compl. ¶ 31.

Defendants allegedly seized medical
Compl. ¶ 31.

Compl. at

Plaintiffs bring eleven causes of action: (1) violation of

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the Fourth Amendment right against unreasonable search and

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seizure, (2) violation of the Fourteenth Amendment, (3) municipal

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liability against the County on a failure to train theory,

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(4) supervisory liability against Sheriff Lopey, (5) employer

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liability against the County, (6) negligence, (7) negligent

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hiring and supervision, (8) violation of California Elections

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Code Section 14027, (9) violation of Section 2 of the Voting

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Rights Act, codified at 52 USC § 10301, (10) negligent infliction

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of emotional distress, and (11) ratification against the County.

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Compl. at 24-30.

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eleventh claims pursuant to § 1983.

Plaintiffs bring their first through fifth and
Id.

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II. OPINION

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A.

Legal Standard

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The California legislature enacted Section 425.16 to

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“provide a procedure for expeditiously resolving nonmeritorious

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litigation meant to chill the valid exercise of the

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constitutional rights of freedom of speech and petition in

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connection with a public issue.”

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2013 WL 4732603, at *2 (N.D. Cal. Sept. 3, 2013) (citing Hansen

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v. Cal. Dep’t of Corr. & Rehab., 171 Cal. App. 4th 1537, 1542-43

Riese v. Cty. of Del Norte,

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(2008)).

Section 425.16 provides that:

A cause of action against a person arising from any
act of that person in furtherance of the person’s
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 is a
probability that the plaintiff will prevail on the
claim.

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Cal. Civ. Proc. Code § 425.16(b)(1).

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in furtherance of a person’s right of petition or free speech”

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as:

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The statute defines “act

(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.
Cal. Civ. Proc. Code § 425.16(e).
In deciding an anti-SLAPP motion, courts engage in a two-

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step process.

Riese, 2013 WL 4732603, at *2.

“First, the

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moving defendant has the burden to demonstrate that the act or

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acts of which the plaintiff complains were taken in furtherance

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of the defendant's right of petition or free speech under the

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United States or California Constitution in connection with a

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public issue as defined in the statute.”

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Outlet #2, Inc. v. United Parcel Serv. Inc., 2014 WL 197733, at

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*2 (C.D. Cal. Jan. 14, 2014).

USA Wheel & Tire

The defendant must “demonstrat[e]
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that the facts underlying the plaintiff’s complaint fit[] one of

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the categories spelled out in section 425.16, subdivision (e).”

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Riese, 2013 WL 4732603, at *2.

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the defendant has met its burden, the court “must determine

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whether the plaintiff has demonstrated a probability of

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prevailing on the claim.”

Second, if the court finds that

Id.

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B.

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Plaintiffs bring their first through fifth and eleventh

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Analysis

claims under 42 U.S.C. § 1983 and their ninth claim under the

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Voting Rights Act.

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under the anti-SLAPP statute.

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anti-SLAPP statute cannot be used to strike federal causes of

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action”).

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pertains only to Plaintiffs’ sixth, seventh, eighth, and tenth

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causes of action.

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The Court cannot strike these federal claims
See id. at *3 (stating that “the

Defendants’ special motion to strike therefore

Defendants argue that the anti-SLAPP statute applies in

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this case because “the County Defendants’ alleged conduct was

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during or in connection with official proceedings authorized by

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law on matters of public interest.”

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Defendants argue that “[i]nvestigatory activities by public

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agencies are ‘official proceedings authorized by law.’”

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Defendants also contend that because investigatory activities

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are “official proceedings authorized by law,” such activities

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are protected under the anti-SLAPP statute.

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Mot. to Strike at 9.

Id.

Id.

Defendants’ argument fails for at least three reasons.

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First, Defendants do not indicate under which of the four

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enumerated categories of protected activities their actions

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fall.

Defendants state in their motion to strike that “[a]
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defendant meets the burden of establishing [the] first step ‘by

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demonstrating that the act underlying the plaintiff’s cause fits

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on one of the categories spelled out in section 425.16,

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subdivision (e).’”

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admission of this burden, Defendants fail to identify the

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category into which their acts fit.

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Mot. to Strike at 8.

Despite their own

Second, the cases that Defendants rely upon in support of

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their argument that their investigatory activities are protected

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by the anti-SLAPP statute are not directly on point.

In

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Garamendi v. Golden Eagle Ins. Co., 128 Cal. App. 4th 452, 478

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(2005), the court stated that “[t]he term ‘official proceeding’

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extends to investigatory activities by public agencies.”

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defendants in Garamendi, however, did not bring a special motion

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to strike under the anti-SLAPP statute.

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mention Section 425.16 and only discusses the term “official

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proceeding” as it pertains to the litigation privilege created

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by California Civil Code Section 47.

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rely on Garamendi because the California Supreme Court once

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stated that statements protected under the Section 47(b)

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litigation privilege are ‘equally entitled to the benefits of

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section 425.16.”

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Opportunity, 19 Cal. 4th 1106, 1115 (1999).

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(quoting.

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California Supreme Court more recently held that “the litigation

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privilege and the anti-SLAPP statute are substantively different

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statutes that serve quite different purposes” and that the

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litigation privilege may apply to statements that are

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“nonetheless not protected under the anti-SLAPP statute.”

The

Garamendi does not

Id.

Defendants apparently

Briggs v. Eden Council for Hope and
Mot. to Strike at 9

But Defendants’ reliance on Briggs is misplaced: the

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Flatly v. Mauro, 39 Cal. 4th 299, 322 (2006).

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clear that privilege under Section 47(b) and protection under

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Section 425.16 are not synonymous, as Defendants suggest.

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Flatly makes

Third, the anti-SLAPP statute specifically protects

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“statement[s] or writing[s]” or “conduct in furtherance of the

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exercise of the constitutional right of petition or the

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constitutional right of free speech.”

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§ 425.16.

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or writing[s]” that gave rise to Plaintiffs’ allegations.

Cal. Civ. Proc. Code

Defendants do not identify any specific “statement[s]

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Defendants argue that their investigatory conduct is entitled to

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anti-SLAPP protection, but they fail to show whether such

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conduct was performed “in furtherance of” Defendants’ right of

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petition or free speech.

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Defendants fail to meet their burden to show that the anti-

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SLAPP statute applies to their alleged acts in this case.

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the Court need not engage in step two of the anti-SLAPP

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analysis.

Thus,

Defendants’ motion to strike is denied.

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C.

Fees and Costs

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The Court denies Defendants’ request for fees and costs

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associated with this motion because Defendants have not

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prevailed.

See Cal. Civ. Pro. Code § 425.16(c).

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II.

ORDER

For the reasons set forth above, the Court DENIES
Defendants’ special motion to strike.
IT IS SO ORDERED.
Dated:

January 4, 2017

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