- Frosty Mornings
- McCowen Retires
- Hopland Blackout
- Child Survives
- Outage Reduction
- Red-Flag Warning
- Budget Brief
- Truck Parade
- Ukiah Quakes
- AV Village
- Power Infrastructure
- Light Festival
- Patriot Act
- Yesterday's Catch
- Our Times
- Political Swine
- Joe Hiden
- Under Capitalism
- Mo Memo
- Okay Boomer
- Empty Man
- Mendo Mystery
- New Normal
- Offshore Drilling
- Measles Epidemic
- Political Hailstorm
- Minimum Wage
- Humco Busts
- Planting Trees
- Other Nevermores
- Carley v Eyster
- Found Object
NORTHEAST WINDS will remain gusty through the day today over the higher terrain and mountains. Mostly clear skies are expected today through Friday, with freezing overnight low temperatures in many of the interior valleys and patchy early morning frost at the coast. (National Weather Service)
McCOWEN BOWS OUT
"For over thirty years it's been my honor to serve the people of Ukiah and of Mendocino County. During this time I've served on the Grand Jury, City and County Planning Commissions, City Council, Board of Supervisors, numerous associated boards and committees and community non-profit organizations.
I am humbled and deeply grateful for having the opportunity to serve, for all the support I've had over the years, and for all the encouragement I've had to run for re-election.
Two weeks ago, instead of being in a Board of Supervisors meeting in Mendocino, I was in the Emergency Room in Ukiah. It was the first Board meeting I've missed and it also served as a reminder of how completely I put the demands of public service ahead of my personal interest.
But after a great deal of reflection I realize that I cannot continue to give 100% of my time and energy to doing the job while simultaneously campaigning for the job. Therefore, I am announcing today that I will not be a candidate for re-election on March 3. Instead, I will continue to work hard doing the best job I can for the people of Mendocino County for the balance of my term."
Second District Supervisor
November 19, 2019
UPDATE #1: PG&E PUBLIC SAFETY POWER SHUTOFF (PSPS) SCHEDULED FOR NOVEMBER 20, 2019 THROUGH NOVEMBER 21, 2019 CHANGE IN SCOPE
Post Date: 11/19/2019 10:40 AM
The County of Mendocino has been notified by Pacific Gas and Electric (PG&E) that power may be turned off in our area due to high risk weather conditions on November 20, 2019. The following updated information was provided by PG&E:
The scope and map have changed and the coastal areas are no longer in scope in Mendocino County.
The PSPS area is McNab Ranch south through Hopland to the County line.
Total Customers have been reduced from approximately 3000 to 1300.
The City of Ukiah is not in scope.
The Community Resource Center (CRC) in Ukiah is scheduled to be erected today. The resource center will be located at 1775 N State St, Ukiah. A CRC will also be located at the Citrus Fairgrounds in Cloverdale.
De-energization will be initiated by PG&E and is estimated to occur at 7:00 am on November 20, 2019, prior to the start of the 8:00 am wind event
The County will release any updated information on the power outage and re-energization timelines as they become available.
For more information, please contact the Executive Office at 707-463-4441. For updated County information on the public safety power shut off, please visit www.mendocinocounty.org/psps or follow the County on Facebook at https://www.facebook.com/mendocinocounty and twitter https://twitter.com/countymendocino.
UPDATE FROM PG&E'S WEBSITE (5pm Tuesday): Gualala and Point Arena have been dropped from the Mendocino County PSPS hit list, leaving only Hopland (1,289 customers).
PROPOSED PG&E SHUT-OFF CUT IN HALF
After warning that a quarter of Sonoma County residents, a number close to the population of Santa Rosa, could lose power Wednesday morning, PG&E greatly scaled back a planned power-shutoff aimed at preventing its equipment from starting wildfires during gusty winds.
SUPERVISOR WILLIAMS: I'm concerned burning has not been suspended during red flag. Please don't burn -- there are safer days ahead.
Update: Just wrote to CalFire and Air Quality.
At Tuesday’s Supervisors discussion of their First Quarter Budget Report (as we are now ending the second quarter, some three months after the first quarter ended) the Board was pleased to hear that they’ve got millions of extra dollars previously not anticipated via a big unspent carryover from last fiscal year and some more unspent dollars for the first quarter. The larger than average “surplus” was “achieved” by keeping a relatively high vacancy rate and by not spending on essential capital projects or “deferred maintenance.” We couldn’t tell if the non-spending/surplus was a conscious/accidental choice or just the County’s usual inability to get people hired or get things done. However, County officialdom was able to somehow give themselves big raises. As Supervisor Ted Williams noted in passing, “If we just don’t fill positions we are getting less done, I don’t see that as real efficiency.” (Mark Scaramella)
FORT BRAGG TRUCK PARADE
Do you love parades? Do you love holiday lights? Then you should enter this year’s Holiday Light Parade. Entry fee is $25 and the entry form and more information is available on the Fort Bragg City's web page at: city.fortbragg.com/481/Lighted-Truck-Parade
LAST NIGHT, THE ENTIRE FLOOR OF THE UKIAH VALLEY FELT A 3.2 EARTHQUAKE. ARE WE PREPARED FOR THE "BIG ONE"?
District 1 and District 3 earthquakes during the last month:
- 11/18/2019 - 3.2 mag, 0.9mi depth; 1.42419 mi from Talmage, CA
- 11/18/2019 - 2.4 mag, 0.2mi depth; 1.61794 mi from Ukiah, CA
- 10/28/2019 - 2.8 mag, 6.6mi depth; 5.75963 mi from Redwood Valley, CA
- 10/28/2019 - 2.5 mag, 0.0mi depth; 9.50188 mi from Willits, CA
- 10/19/2019 - 2.8 mag, 5.8mi depth; 7.18124 mi from Talmage, CA
- 10/19/2019 - 2.2 mag, 6.2mi depth; 7.29905 mi from Talmage, CA
- 10/19/2019 - 1.5 mag, 4.9mi depth; 1.90585 mi from Redwood Valley, CA
-- John Sakowicz, Candidate 1st District Supervisor
AV VILLAGE DEC MONTHLY GATHERING AND MORE…
Hope this email finds you well! A couple of things:
This Wednesday Nov 20th 11:00 am to 12:30 a book conversation at Lauren’s. The book is still “Enlightenment Now - The Case for Reason, Science, Humanism, and Progress” by Steven Pinker — Chapters 8 & 9.
Contact Lauren for questions email@example.com
For the December monthly gathering - Note: we are changing things up a bit - new date (not the second Sunday), new time and new location (not Lauren's). Details as follows:
AV Village Holiday Party
Sunday Dec 15th, 5 pm on
At Philip Thomas' house (13325 Estate Dr, Boonville)
The Anderson Valley Village will host a House Party to celebrate the Holidays. All welcome and refreshments provided! Hope to see you there.
Do you use or know of a good "life alert" type system (a pendent or watch that you wear and press if you have fallen and can't get up) that works well in Anderson Valley? Please let me know so I can share this info with our members and the rest of the community.
Volunteer Opportunities - ways to get involved:
Though we have a great team of dedicated volunteers there are some gaps to fill and as our membership increases we want to make sure we don’t over tap our current volunteers. We would love more volunteers to:
Support our Members with:
- Tech support (help with computers, cell phones, printers, televisions)
- Respite for care giver (1 to 2 hours)
- Pick up prescriptions
- Evaluating contractors proposals
- Quick response coordinators and volunteers needed for members needing a quick response for support: this might include an illness, aftermath of a hospital stay or recovery from an accident or another unexpected occurrence — non medical emergencies.
Organize/ lead Activities like (we can help with logistics and outreach):
- Morning Coffee chats
- Physical activity groups, walks, dance, exercise
- Outings, natural, cultural, intellectual, films, tours
- Support groups
- Classes/ Groups - Gardening, Cooking, Crafts/ Art
Support the AV Village:
- Bring food to the monthly gatherings
- Post fliers for our monthly gatherings around Boonville and Philo
- Join the AV Village Board
- Find more service providers and/ or update current ones
- Legal support
- Host social events
- Join an AV Village committee
- Community/Events Com.
- Communications/PR Com.
- Software/Website Com.
- Quick response Planning team
- Volunteer/Membership Com.
Anderson Valley Village Coordinator
Mailing address: Anderson Valley Village
P.O. Box 576 Boonville, CA 95415
RECORDS SHOW 8 PG&E TOWERS PASSED INSPECTIONS BEFORE CAMP FIRE, FAILED AFTER
An NBC Bay Area Investigative Unit analysis of newly obtained inspection records reveals that eight towers on the aging PG&E transmission system blamed in the Camp Fire had passed inspections just days before the blaze, only to fail emergency climbing inspections the company conducted in the days after.
FESTIVAL OF LIGHTS AT THE GARDENS
Mendocino Coast Botanical Gardens invites you to create a holiday tradition and take a stroll along twinkling pathways lined with inventive displays!
AS THE HOUSE HOLDS HEARINGS to impeach Trump for “abuse of power,” Pelosi just rushed through an extension of the Patriot Act, giving that very same president vast, unchecked powers to spy on American citizens. This makes sense only in Washington.
— Jeffrey St. Clair
CATCH OF THE DAY, November 19, 2019
JAIME CASTANEDA-COCOM, Albion. Disorderly conduct-alcohol, controlled substance, probation revocation.
KELLY CLARK, Ukiah. Loitering, prowling, wandering around on private property, peeking in doors and windows of inhabited dwelling, probation revocation.
JOHN COOK, Ukiah. Parole violation.
HEART HESHERTON, Ukiah/Little River. Disorderly conduct-alcohol, vandalism.
VALENCIO JUAREZ, Madera/Ukiah. DUI.
JOSE MAYCHAN, Fort Bragg. Disorderly conduct-alcohol.
ROBERT MENDEZ, Redway/Leggett. DUI.
CHARLES PAPKE, Carpenteria/Ukiah. DUI causing bodily injury.
by Fred Gardner
Introducing "Our Times," a wayward press column by Fred Gardner for the AVA website.
Stopping Soda Sales = Slimmer Staff at UCSF
Banning the sale of sugar-sweetened beverages at UCSF resulted in belt-tightening by employees —literally. Such a ban was implemented from July 2015 to October 2016. A study in JAMA Internal Medicine October 28 analyzed the impact of the ban on 214 members of the workforce who regularly consumed sugar-sweetened drinks. Participants cut their average consumption almost in half —from about 35 ounces/day to 18/day. Mean waist circumference went down by 2.1 centimeters.
Senior author Laura Schmidt, a professor at the medical school, made some interesting comments to science writer Anahad O'Connor, who has been covering the sugar-consumption story for the New York Times:
"She pointed out that it costs the University of California healthcare plan more than $5,000 per year to cover someone with pre-diabetes compared with someone without it.
"Dr. Schmidt said that the policy was also an easy switch for UCSF's beverage suppliers. Instead of stocking campus stores and cafeterias with Sprite and Coca-Cola, they filled them with mostly bottled water and low- or no-calorie beverages instead. 'UCSF still has a contract with Coca-Cola and they still show up at the medical center in their big red truck, except now they unload Dasani water instead of Coke," she added.
In my lifetime capitalism has made a commodity out of drinking water —a basic necessity of life, the provision of which by government was a basic part of the social contract, we assumed back in the day. Parks, playgrounds, schools, museums —all had functioning fountains, as did office buildings and other private-sector venues such as movie theaters. Many are now dysfunctional or have been removed. People are supposed to buy their drinks. The corporate state reduces citizens to consumers.
During my 13-year stint at UCSF there was a water cooler down the hall that was supplied by a truck driver employed by Alhambra, not the city and county of San Francisco. A four-gallon bottle was placed upside down on top of a dispenser with a spigot from which you filled a small paper cup. Gravity and a valve controlled the flow. The driver would come once a week with full bottles and to take away the empties. At one point c. 1990 Alhambra changed from a round four-gallon glass bottle to a squared-off five-gallon plastic bottle —harder work for the drivers that was not accompanied by a raise.
I once asked our delivery person the source of our bottled water, hoping to hear Mt. Shasta or some such pristine rural setting. He said Alhambra had a bottling plant near the airport and the bottles were filled with water from the tap. Which would have been okay if it was pure Hetch-Hetchy, but San Francisco had started adding chloramine to the water, which made it unfit for birds to drink (according to the knowledgable missus, who was raising Gouldian Finches). I hoped Act-Up would act up about chloramine in the water, but my suggestion went unheeded.
Now UCSF's Dr. Schmidt is pleased that people are drinking Dasani water instead of Coca-Cola. But to 20th Century Fred, they —we— are paying $1.50 for something that should be free, and tossing another plastic bottle into the ocean.
Bonus track: The Tawdry Office Affair
Unwarranted Stents and Bypasses
In April I lost a close friend whose unnecessary stent had led to complications that led to unsuccessful surgery. My friend was an independent thinker but a compliant patient — one of thousands who had not suffered heart attacks but were sold stents and bypass procedures on the basis of exercise stress tests, supposedly to fend off future attacks. Now a major study shows that these interventions serve no protective purpose. As in the New York Times Nov. 16:
The findings of a large federal study on bypass surgeries and stents call into question the medical care provided to tens of thousands of heart disease patients with blocked coronary arteries, scientists reported at the annual meeting of the American Heart Association on Saturday.
The new study found that patients who received drug therapy alone did not experience more heart attacks or die more often than those who also received bypass surgery or stents, tiny wire cages used to open narrowed arteries…
With its size and rigorous design, the new study, called Ischemia, was intended to settle questions about the benefits of stents and bypass… The results will be incorporated into treatment guidelines…
The participants in Ischemia were not experiencing a heart attack, like Senator Bernie Sanders, nor did they have blockages of the left main coronary artery, two situations in which opening arteries with stents can be lifesaving. Instead, the patients had narrowed arteries that were discovered with exercise stress tests.
With 5,179 participants followed for a median of three and a half years, Ischemia is the largest trial to address the effect of opening blocked arteries in nonemergency situations and the first to include today’s powerful drug regimens.
The reference to Bernie Sanders seems gratuitous —a subtle reminder that the 78-year-old Senator may not be durable like Mayor Pete or Ambitious Amy.
CDC says Vitamin E is main cause of vapers' lung damage
The Centers for Disease Control and Prevention has identified a form of Vitamin E, tocopheryl-acetate, as the chemical that has caused serious lung damage to more than 2,000 US vape pen users and death to 39 as of November 5. According to a November 8 advisory on the CDC site:
Recent CDC laboratory testing of bronchoalveolar lavage (BAL) fluid samples (or samples of fluid collected from the lungs) from 29 patients with EVALI submitted to CDC from 10 states found vitamin E acetate in all of the BAL fluid samples. Vitamin E acetate is used as an additive in the production of e-cigarette, or vaping, products. This is the first time that we have detected a potential chemical of concern in biologic samples from patients with these lung injuries.
CDC continues to recommend that people should not use e-cigarette, or vaping, products that contain THC, particularly from informal sources like friends, or family, or in-person or online dealers. We will continue to provide updates as more data become available.
On November 4 Leafly posted a lucid, well-researched piece by Marissa Wenzke and David Downs about the culprits. chemical and human. They explain:
Industrial chemical manufacturers have sold vitamin E oil for years, but only as an ingredient in hand lotions or gummy vitamins. So who turned tocopheryl-acetate into a wildly popular and potentially deadly vape cartridge additive?
Multiple industry experts point to a mysterious, low-profile Los Angeles company called Honey Cut. By creating a new category of “thickening” vape cartridge additives, Honey Cut became a nationwide phenomenon. Its formula—and copycat products just like it—suddenly turned up last year in illicit THC vape cartridges nationwide.
Don't expect the sad epidemic to come to an abrupt end, partly because of those "copycat products." As the Leafly team note,
"Vape cartridge makers are continuously developing more novel additives, just as the makers of performance-enhancing drugs keep innovating to stay one step ahead of anti-doping agencies… With a few clicks, anyone can find images of the company’s logo online, print it out on stickers, and start selling re-labeled jars of vitamin E oil on Ebay. Chinese authorities have promised to start clamping down on supplies, but the product remains just a Google search away."
Although many media outlets are now describing Vitamin E oil as the cause of vape-related lung damage, analytic labs have found significant pesticide and herbicide residues in cannabis oil (and flowers). Unscrupulous producers also use synthetic cannabinoids like "Spice" instead of plant extracts in the oil they fill their vape cartridges with.
Although most of the EVALI patients reported having vaped THC, 11% "reported exclusive use of nicotine-containing products," according to a CDC survey posted October 15. So e-cigarettes are not in the clear.
Although the coils and batteries of vape pens were not implicated in the EVALI epidemic, if cheaper versions with a less benign safety profile become available, unscrupulous ganjapreneurs will market them.
Leafly Profiles a Vietnam Vet
On Veterans Day Leafly ran an interesting take by Alana Armstrong, a young Canadian journalist, "How Vietnam veterans expanded America’s cannabis strains." The piece is based on interviews with a Vietnam vet named Bob Luciano, who tells her, “The reality was that it was able to prepare us for battle and all the unknown things… It enabled you to go into battle, complete your mission, talk about it, and then go back in to complete another mission.” This is an observation not often shared. Most GIs paired marijuana use with an anti-war outlook. But it's a versatile drug, restoring balance to many physiological systems. Its effects depend on the needs of the user. One of the best known effects is forgetting. Marijuana enabled Luciano and friends to "then go back in…" Prohibitionists allege that the 'hashishin' warriors —from whom the word "assassin" derived— smoked marijuana to get hopped up before battle. Pro-cannabis historian Tod Mikuriya, MD, wrote that the hashishin smoked hash the night before battle to get rested up. Now we've got Luciano's alternative scenario.
Contrary to the headline, the piece is not about cannabis strains brought back to the US from Vietnam. It's mainly about Bob Luciano, who
"took his seeds and headed for Jamaica. For five years he honed his skills as a cannabis grower, operated an organic restaurant with his wife, and developed his Mr. Natural brand of cannabis products, from dry flower to salves.His years in Jamaica allowed Luciano to experiment with cross-breeding, and learn how environmental factors like air quality and soil affected the plant… Always adhering to organic growing practices, Luciano began creating genetic variations that made the most sense for veterans like himself—strains that calm the mind, ease physical pain and stimulated the appetite.
Today, Luciano medicates daily for chronic pain and PTSD. He reaches out to other veterans, helping them navigate the byzantine ways of the VA so that their cannabis use doesn’t negatively impact their treatment. In the past, testing positive for THC would have automatically ended a VA patient’s ability to receive pain medication prescriptions, but that’s no longer the case…
Because of a change in VA policy, American veterans are no longer denied benefits if they are found to be consuming cannabis. VA medical officials now advise patients to disclose their cannabis use, as it may affect the course of action taken by doctors.
Still, some veterans choose not to reveal details of cannabis use to their physicians. Luciano had the VA note his cannabis use on his medical records ten years ago, and he encourages others to do the same. His message is simple: “Notify the VA that you’re getting more medicinal benefits from it,” he said, to force the agency to recognize the value of cannabis and change its policy."
O'Shaughnessy's Contributor Deposed
"Let me Chew my Coca Leaves!" by Evo Morales ran in O'Shaughnessy's Summer 2009. For the Indians of Bolivia, Morales's 12 years as president has been like "the Reconstruction era" for Black people in the US —a brief period during which they gained some economic and political standing. The heavily plastic-surged woman who declared herself president as the military took power pledged to restore the Bible to Bolivia. She looks like a Donald Trump ex.
Morales was ordered to resign by the head of Bolivia's military, according to reliable Mark Weisbrot of the Center for Economic and Policy Research (CEPR), after weeks of protests and disputes over the October 20 elections. The Organization of American States (OAS) had challenged the official results (even before they had been announced!) and Morales agreed to an OAS audit of the election. The audit found an "inexplicable" change in the trend as the votes had been counted, and on this basis called for new elections. But CEPR's statistical analysis of the votes provided the explanation: those from rural areas that overwhelmingly favored Morales were counted later than those favoring his opponents.
Counterpunch has the economic-determinist angle on the coup: Bolivia has huge lithium reserves.
The full-page mea culpa ad
The full-page mea culpa ad — which typically consists of corporate self-justification and promises to do better — has become a major source of revenue for the New York Times. The big-spending sinners in 2019 have included Juul, Purdue Pharma, and Johnson & Johnson. There were several full-page ads from Bayer in response to juries finding that plaintiffs’ exposure to Roundup caused non-Hodgkins lymphoma. Typical text::
“Tested for 40 years. Approved for 40 years… Glyphosate-based herbicides, which include most Roundup products, are among the most rigorously studied products of their kind. Hundreds of studies submitted to regulators, peer-reviewed publications and ongoing review by regulatory and scientific bodies for more than 40 years support the safety of glyphosate-based products when used as labeled.”
Followed by a list of regulatory agencies that have approved the use of glyphosate. Too bad about the wipe-out of the Monarch butterflies. (Roundup destroys the milkweed that sustained them on their miraculous migration over the Midwest.)
On Thursday Oct 31, a Boeing full page ad on page 5 unctuously declared "Safety. Integrity. Quality. They're the values guiding us to make the MAX one of the safest airplanes ever to fly."
The ad was brought on by news stories such as "Boeing Max 37 Safety System was vetoed, Engineer Says" (October 2). "Boeing CEO had warning before 2nd crash" ran October 10, followed the next day by "Boeing and F.A.A. Faulted in Damning Report on 737 Max Certification." (Boeing was found to have withheld information and misled the FAA (which has diminished capability). Before 346 people died in 737 Maxes that plunged uncontrollably down, Boeing was lobbying to eliminate the FAA's vestiges of regulatory authority.
Helping Professional Nixes Union Drive
Housing Works, a non-profit founded in 1990 to find apartments in NYC for HIV+ homeless people, now has more than 100 employees. To block their attempt to join the Retail, Wholesale and Deparment Store Union, Rebecca Liebson reported in the Times Oct. 29, head honcho Charles King has hired "a lawyer who specializes in union avoidance." King "denies that he is anti-union. He says Housing Works has maintained the spirit of community through policies that encourage workers to share their ideas and concerns."
JOE BIDEN’S ASTROTURF CAMPAIGN
by Norman Solomon
Last week, I attended Joe Biden’s first rally in California since he launched his presidential campaign more than six months ago.
It was revealing.
The Biden for President campaign had been using social media and its email list in the Los Angeles area to urge attendance. Under sunny skies, near abundant free parking, the outdoor rally on the campus of LA’s Trade-Technical College offered a chance to hear the man widely heralded as the frontrunner for the Democratic presidential nomination.
No more than 500 people showed up.
Admittedly, as an active Bernie Sanders supporter, I didn’t have high expectations. But what struck me about the rally went beyond the dismal turnout and the stale rhetoric from a corporate Democrat posing as a champion of working people.
Biden’s slow decline in polls is empirical, but what ails his campaign — as reflected in that California kickoff rally — is almost ineffable. Biden is a back-to-the-future product who often seems clueless about the present. In view of so many deep and widespread concerns, from income inequality to healthcare disparities to the climate emergency, his talking points are simply beside the point.
The Biden base has two main components: the corporate media outlets that routinely protect him from critical scrutiny, and the rich people who routinely infuse his lackluster campaign with cash. When and where he isn’t getting fuel from either component of that base, the campaign sputters.
Contrasts with the large and passionate rallies for Sanders and Elizabeth Warren could hardly be greater. Not coincidentally, those two candidates are glad to rely on large numbers of small donations, while Biden relies on small numbers of large donations.
Biden is so afraid of Democratic activists that — for the second time this year — he declined an invitation to join other candidates in speaking to a convention of the California Democratic Party. The latest convention heard from eight presidential candidates on Nov. 16, two days after Biden’s kickoff rally, no more than an hour’s drive away in Long Beach.
While careful to stay away from engaged grassroots Democrats, Biden made a beeline for wealthy donors immediately after his sparsely attended rally. First, he hurried over to a reception in West Los Angeles (tickets up to $1,000 each). Later that evening, a local TV station noted, Biden’s fundraising schedule took him to “the Pacific Palisades home of Rick Lynch, the owner of the entertainment marketing firm BLT Communications, and music video producer Lanette Phillips,” with tickets “priced at $500 and $2,800, the maximum individual contribution during the primary campaign.”
The Los Angeles Times reported that Biden “previously made eight fundraising trips to California since entering the race in late April, visiting at least once a month. He has headlined 21 fundraisers in the state, raising money at the homes of Hollywood executives, Silicon Valley tech leaders and other affluent Democrats.”
Among some who roll their eyes about Biden, a kind of conventional wisdom now says that he is sure to fade from contention. But — in the absence of comparable polling numbers from the numerous other corporate candidates in the race — the Biden campaign is likely to be the best bet for deep-pocketed political investors seeking to prevent the nomination of Sanders or Warren.
Biden’s decision last month to greenlight super PACs on his behalf has underscored just how eager he is to bankroll his AstroTurf campaign against grassroots progressives no matter what. As he said during an interview in January 2018, “you shouldn’t accept any money from a super PAC, because people can’t possibly trust you.” But ultimately, Biden doesn’t need people’s trust. He needs their acquiescence.
(Norman Solomon is the author of “War Made Easy: How Presidents and Pundits Keep Spinning Us to Death.” He is the executive director of the Institute for Public Accuracy and co-founder of RootsAction.org.)
MO MEMO #16
One Council members account of the week on the Ukiah City Council. Today I was invited to attend the City of Ukiah all employee team breakfast. This is an annual tradition that started when City Manager Sage Sangiacomo took over about 5 years ago. Right away he started to implement core values Professionalism, Team Work, Innovation, Safety and Service what the City of Ukiah employees strive to implement every day.
The team breakfast is a great way for team members that don't usually see each other to check in and it is also an opportunity to relay the information in the Team Satisfaction Survey. What I like about the survey is that even things with less positive results are treated as an opportunity to improve. The same 20 or so questions come back and all areas have improved for employee morale and satisfaction even if only slightly. Each year the employees are updated on the work that each department has been completing with everything from LED lighting projects in the Electric Utility, Vinewood Park Improvements from Community Services and the Housing Element from the Community Development Department. I'm proud of the employees that we have at the City of Ukiah that are working to make things better for our residents each day. The next time you see a City of Ukiah employee thank them for making a difference. If they've really made an impact on you feel free to nominate them to our Exceptional Employee Program: https://www.cityofukiah.com/eep/
Today was also a very special day in City of Ukiah history as the Recycled Water Project for the City of Ukiah had a ribbon cutting.
Today the contractor, City of Ukiah team members and designers joined with the community to announce that Phase 1-3 of the Recycled Water Project are live. The Recycled Water System includes nearly eight miles of pipeline, a 66-million-gallon water storage reservoir, upgraded treatment facilities and improved water and wastewater infrastructure on Oak Manor Drive. This allows the City to serve approximately 325 million gallons of water to farmers, parks, and schools. We were also joined by the Peregrine Audubon Society and members of the Greater Ukiah Business and Tourism Alliance. If you haven't had a chance to see the drone video take a look here: https://cityofukiah.app.box.com/s/ty98i67cdjw3oz8332vtzdk6gnzidfvh
"If you look at history, innovation doesn't come just from giving people incentives; it comes from creating environments where their ideas can connect." Steven Johnson (born 1968), Science author & media theorist
CHARLES PIERCE, ESQUIRE MAGAZINE:
"In my life, I have watched John Kennedy talk on television about missiles in Cuba. I saw Lyndon Johnson look Richard Russell squarely in the eye and and say, "And we shall overcome." I saw Richard Nixon resign and Gerald Ford tell the Congress that our long national nightmare was over. I saw Jimmy Carter talk about malaise and Ronald Reagan talk about a shining city on a hill. I saw George H.W. Bush deliver the eulogy for the Soviet bloc, and Bill Clinton comfort the survivors of Timothy McVeigh's madness in Oklahoma City. I saw George W. Bush struggle to make sense of it all on September 11, 2001, and I saw Barack Obama sing "Amazing Grace" in the wounded sanctuary of Mother Emanuel Church in Charleston, South Carolina.
These were the presidents of my lifetime. These were not perfect men. They were not perfect presidents, god knows. Not one of them was that. But they approached the job, and they took to the podium, with all the gravitas they could muster as appropriate to the job. They tried, at least, to reach for something in the presidency that was beyond their grasp as ordinary human beings. They were not all ennobled by the attempt, but they tried nonetheless.
And comes now this hopeless, vicious buffoon, and the audience of equally hopeless and vicious buffoons who laughed and cheered when he made sport of a woman whose lasting memory of the trauma she suffered is the laughter of the perpetrators. Now he comes, a man swathed in scandal, with no interest beyond what he can put in his pocket and what he can put over on a universe of suckers, and he does something like this while occupying an office that we gave him, and while endowed with a public trust that he dishonors every day he wakes up in the White House.
The scion of a multigenerational criminal enterprise, the parameters of which we are only now beginning to comprehend. A vessel for all the worst elements of the American condition. And a cheap, soulless bully besides.
Watch him make fun of the woman again. Watch how a republic dies in the empty eyes of an empty man who feels nothing but his own imaginary greatness, and who cannot find in himself the decency simply to shut the fuck up even when it is in his best interest to do so. Presidents don't have to be heroes to be good presidents. They just have to realize that their humanity is our common humanity, and that their political commonwealth is our political commonwealth, too.
Watch him again, behind the seal of the President of the United States. Isn't he a funny man? Isn't what happened to that lady hilarious? Watch the assembled morons cheer. This is the only story now."
MENDO MYSTERY: what was Annie Londonderry selling in Ukiah?
THE NEW NORMAL
The theme of fires, evacuations and widespread public safety power shutdowns graced several sections of Sunday’s paper. It is a cascade of losses. Lost lives, lost property, lost income, lost crops, lost school days, lost work days, lost peace of mind, lost ability to think clearly, lost peace, lost joy, lost sanity (for me anyway), lost food, lost money, lost therapy, lost medications. This can’t go on. It can’t be the new normal, we keep hearing.
Guess what may be next? On the same page as the article about support for people who have losses from the fires is the warning of a possible PG&E outage this coming Wednesday or Thursday.
I lost power for five days in the last outage. It was confusing, disorienting and exhausting. It isn’t just October. Fire season is year-round now. If this outage were a week from now, how many people would be stuck celebrating Thanksgiving without power?
Stop saying this can’t be the new normal. It’s time for Gov. Gavin Newsom, the California Public Utilities Commission and county leaders to do something. People are tired, scared and overwhelmed. This is unsustainable.
PETITION TO STOP OFFSHORE OIL DRILLING
Here is a site someone sent me where you can sign a petition to stop offshore drilling. Please sign and spread this site far and wide!
ATTN. INGER GRAPE, DOUG MCKENTY
Measles Not Always Harmless. PD 11/19/19
Deadly measles epidemic ravages Samoa Schools in the Pacific island nation of Samoa were closed indefinitely Monday and children have been barred from public gatherings amid a measles epidemic that has killed at least six people, most of them younger than 2. As Samoa, a country of about 200,000 people that is part of the same island chain as American Samoa, declared an emergency last week, health officials said they were “anticipating the worst to come.” At least 716 potential cases of measles have been recorded and almost 100 people have been hospitalized. Among those killed were three siblings from one family, according to New Zealand news reports. But the number of cases and deaths is most likely higher, experts said, calling the Samoan government’s response to the epidemic delayed. “It’s as bad as you’re seeing and probably worse,” said Helen Petousis-Harris, a vaccinologist at the University of Auckland in New Zealand. ‘This is very much out of control’.”
Press Democrat news services
THE GEARS ARE SPRINGING LOOSE ON THE TRUMPMOBILE
The House is now investigating whether the president lied to Robert Mueller's team about Wikileaks—and that's just one thing dogging him.
HUMCO'S MARIJUANA PRICE SUPPORT STATS
The Humboldt County Sheriff’s Office Marijuana Enforcement Team (MET) has concluded the 2019 Domestic Cannabis Eradication/Suppression Program (DCE/SP) grant cycle. The 2019 grant cycle funded Sheriff’s cannabis enforcement operations from October 2018 to September 2019.
During the 2019 cycle the following statistics were calculated:
- 86 operations conducted at non-permitted cannabis cultivation/processing sites
- 206,966 cannabis plants eradicated
- 39,788 pounds of processed cannabis destroyed
- $94,718 in U.S. currency seized
- 81 illegal firearms seized
- 16 arrests
Numerous environmental violations associated with unpermitted cannabis cultivation sites were also discovered during the 2019 cycle.
The DCE/SP grant is funded by the Drug Enforcement Administration with the intent to reduce domestic cannabis cultivation. The DCE/SP grant started in 1979 and funds deputy overtime costs, expendable and non-expendable equipment, aircraft rental and training/travel costs. For the 2019 grant cycle, the Sheriff’s Office received $220,000 to cover these costs. The Sheriff’s Office has been a recipient of this grant for the past 20 years.
While the DCE/SP grant cycle has ended, the Sheriff’s MET will be continuing its cannabis enforcement investigations this winter with a focus on unpermitted indoor cultivation operations.
To report illegal cannabis operations in your neighborhood, please contact the Humboldt County Sheriff’s Office Crime Tip Line at 707-268-2539.
“I’m retired. Some people tell me to do volunteer work, but I don’t have the heart for it. I’m not looking to spend the last part of my life taking care of other people. I’m tired. I’ve worked my whole life. It was a nightmare out there. Only way up the ladder was to stomp on other people. Unless you stomp on someone, you’ll never get a promotion. It’s your only chance. And after you’ve given your coworker a good stomping, the boss will hire his own relative for the job. Terrible, but that’s the way it is. Everyone is out for themselves. Don’t even get me started on my wife’s family.”
(Hong Kong / Humans of New York)
PLANTING BILLIONS OF TREES IS THE 'BEST CLIMATE CHANGE SOLUTION AVAILABLE TODAY,' STUDY FINDS
EYSTER OFF THE HOOK
(Federal Appellate Court Ruling)
Amanda Carley V. David Eyster
Filed 11/18/19 Carley v. Eyster CA1/5
In The Court Of Appeal Of The State Of California
First Appellate District
Plaintiff and Appellant,
Defendant and Respondent.
Super. Ct. No. SCUKCVG1769021)
Amanda Carley appeals from a judgment entered after the court dismissed two counts of her complaint against respondent David Eyster pursuant to Code of Civil Procedure section 425.16, commonly referred to as the “anti-SLAPP” statute. Carley contends her claims were not subject to the statute. We will affirm the judgment.
I. Facts And Procedural History
In April 2017, Carley filed a lawsuit against the County of Mendocino, the Mendocino County District Attorney’s Office, the Mendocino County Probation Department, Albert Ganter (Chief Probation Officer), Noble Waidelich (Carley’s former fiancée and City of Ukiah Police Officer), and respondent Eyster (Mendocino County District Attorney).
In her 15-count complaint, Carley asserted claims for violation of her California constitutional rights, termination of her employment in violation of public policy, “hostile work environment harassment,” retaliation, sexual harassment, intentional infliction of emotional distress, intentional interference with contract, civil conspiracy, breach of the implied covenant of good faith and fair dealing, battery, breach of oral contract, intentional misrepresentation, and money had and received.
A. Allegations of Carley’s Complaint
According to the complaint, Waidelich injured Carley physically and psychologically while she was employed as a probation officer in Mendocino County. Her daughter reported Carley’s injuries and Waidelich’s crimes to local authorities. In an investigation by the Mendocino County Sheriff’s Office, Carley was “[r]eluctant at first to reveal the truth due, in part, to fear of the repercussions of lodging a complaint against a police officer,” so she “downplayed the injury and the underlying crimes.” The investigator expressed his belief that she was not telling the complete story and advised her to come forward when she was ready. After Carley separated from Waidelich, she reported “the full account of what happened,” including his physical, emotional, and financial abuse.
Once Carley gave her full account, it was allegedly she (rather than Waidelich) who was investigated. Mendocino County investigated Carley for deceit, issued her a formal reprimand for lying, reassigned her to lesser duties, denied her opportunities, and confiscated her duty weapon to humiliate her and inflict emotional “strain.” During an administrative review process, Carley’s requests for production of documents were denied. According to her complaint, such acts and omissions were typical of police agencies when faced with allegations that a peace officer was guilty of a crime. The acts and omissions were also allegedly retaliatory, thwarted her ability to obtain justice, and targeted her due to her gender. Eventually, Carley resigned her position as a probation officer.
As relevant to this appeal, Carley’s third cause of action for “hostile work environment harassment” under Government Code section 12940, subdivision (j) incorporated the foregoing allegations and further alleged that Eyster, who “headed” the Mendocino District Attorney’s Office, insisted that Carley’s duty weapon be confiscated and “adopted a policy of disqualifying her from handling cases in the Superior Court by instructing his deputies to make a so-called Brady Disclosure.” According to the pleading, these acts were typical of law enforcement agencies when faced with allegations that a peace officer was guilty of a crime, were retaliatory, and targeted her due to her gender. She therefore allegedly suffered from a hostile work environment.
For her eighth cause of action for “civil conspiracy,” Carley alleged that Eyster conspired with the probation department and police department to protect Waidelich by “putting pressure on [Carley] to either keep quiet or leave her job.” This pressure was allegedly applied through an internal investigation, formal reprimand, demotion, loss of her duty weapon, “placement of her name on a so-called ‘Brady list’ ” and “voluntary (and unheard of) disclosure by [Eyster] of non-Brady information to defense attorneys related to her true report of being physically assaulted and battered by a police officer.”
B. Eyster’s Motion to Strike
In December 2017, Eyster filed a special motion to strike (§ 425.16) as to the counts against him. Eyster contended that all of the claims arose from activity protected by the anti-SLAPP statute, and the claims had to be dismissed because Carley had no probability of prevailing on them.
In support of his motion, Eyster submitted a declaration detailing his handling of Carley’s accusations against Waidelich. Eyster averred that he was the District Attorney for Mendocino County, managing the office and prosecuting criminal misconduct. In 2015, his office received a police report from the Sheriff’s Department pertaining to criminal allegations Carley made against Waidelich. Pursuant to his usual practice, Eyster reviewed the police report and supporting information to decide whether to accept the case for prosecution.
After reviewing the materials, Eyster decided not to prosecute Waidelich because some of Carley’s allegations involved events outside the statutory limitations period, the more recent incidents were too vague to prosecute, and the “alleged [victim] is less than cooperative and presents as less than credible.”
Eyster also noted that statements Carley made to the Sheriff’s Office investigators indicated that one or more of her preceding statements had been untruthful. This concerned Eyster, because probation officer Carley was a peace officer, she could be subpoenaed as a prosecution witness in future criminal proceedings, and pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady) prosecutors must notify defense counsel of impeachment evidence relating to prosecution witnesses. To comply with Brady, Eyster’s office maintained a “Brady Listing and Document System” relating to peace officers who committed acts of dishonesty.
Eyster notified Carley’s supervisor, Chief Probation Officer Albert Ganter, that there was potential Brady impeachment material involving Carley. Eyster did this so the county could take any action it deemed appropriate, given that a peace officer’s inclusion on a Brady list makes it difficult for the officer to testify in court due to her susceptibility to impeachment. Eyster then waited a few months, while Carley was not needed to testify on any criminal matters, in case the county conducted an investigation clearing her. Later, Eyster revisited the matter and deemed it necessary to notify Carley that the reports from the Sheriff’s Department likely contained Brady information. On January 8, 2016, Eyster sent Carley a letter alerting her that the information pertaining to her dishonesty would be stored in the District Attorney’s Brady system.
Eyster denied having any personal involvement in Mendocino County’s investigation of Carley. He also denied knowledge as to Carley’s allegation that he “insisted that Defendant Ganter confiscate Plaintiff’s duty weapon,” as it is not within his purview as District Attorney to decide whether probation officers have access to firearms or other weapons.
Carley voluntarily dismissed all but two of the counts in her complaint as to Eyster, leaving only the third cause of action (“Hostile Work Environment Harassment”) and the eighth cause of action (“Civil Conspiracy”). As to these claims, Carley filed an opposition to Eyster’s motion to strike. She contended that the claims against Eyster were not subject to the anti-SLAPP statute, but she did not submit any evidence or attempt to show a probability of prevailing on her claims.
In a 23-page Final Statement of Decision issued after a hearing, the court granted Eyster’s special motion to strike, concluding that all of Carley’s claims against Eyster arose from protected activity. Judgment was entered accordingly, and this appeal followed.
Section 425.16, subdivision (b)(l) authorizes a special motion to strike any cause of action arising from activity protected by the statute: “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.”
The analysis of a special motion to strike has two steps. First, the court determines whether the defendant made a threshold showing that the cause of action arises from the defendant’s free speech or petition activity, as specified in the statute. (§ 425.16, subds. (b), (e); Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1181 (Wallace), disapproved in part on another ground in Baral v. Schnitt (2016) 1 Cal.5th 376, 396, fn. 11.) To make this determination, the court must consider the elements of the cause of action and the acts on which those elements—and thus liability—are premised. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).) Second, if the cause of action does arise from protected activity, the burden shifts to the plaintiff to establish a probability of prevailing on the claim. (§ 425.16, subd. (b); Wallace, supra, 196 Cal.App.4th at p. 1181.) We review de novo an order granting the motion to strike. (Wallace, at p. 1181.)
A. First Step: Arising from Protected Activity
By statutory definition, acts in furtherance of a person’s right of petition or free speech, and thus protected by the anti-SLAPP statute, include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, and 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.”
(§ 425.16, subd. (e)(1)–(2).) Carley’s causes of action hinge on such protected activity.
- Third Cause of Action (Hostile Work Environment Harassment)
Government Code section 12940, subdivision (j), makes it an unlawful employment practice to harass an employee based on sex or gender. The elements of the cause of action include harassment.
As alleged in her complaint, Carley’s claim of “hostile work environment harassment” is based on the following acts: (1) Eyster insisted that Carley’s duty weapon be confiscated; and (2) Eyster “adopted a policy of disqualifying her from handling cases in the Superior Court by instructing his deputies to make a so-called Brady Disclosure.” Carley alleges that Eyster performed these acts in the course and scope of his employment as Mendocino County District Attorney.
The acts on which the third cause of action predicates liability are plainly protected by the anti-SLAPP statute. Allegedly “insisting” that Carley’s weapon be confiscated reflects a “written or oral statement” by Eyster “in connection with an issue under consideration or review by a[n] . . . executive or judicial body”—namely, Carley’s accusations against Waidelich and Carley’s potential dishonesty—and is thus protected under section 425.16, subdivision (e)(2). Allegedly “instructing his deputies to make a so-called Brady Disclosure,” and thereby effect a policy of disqualifying Carley from court cases, also indicates a statement in connection with an issue under consideration by Eyster’s office, as part of his duty to notify defense counsel of impeachment evidence relating to prosecution witnesses. (§ 425.16, subd. (e)(2); see Neri v. County of Stanislaus Dist. Attorney’s Office (E.D. Cal. Sept. 9, 2010) 2010 U.S. Dist. Lexis 99839 (Neri) [decision to place officer on a Brady list is part of a prosecutor’s judicial function].) These acts, like others taken in the course of reporting, investigating, or prosecuting potential criminal actions, are protected under the statute. (E.g., Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 999 [police inspector’s memorandum to district attorney and police officer’s affidavits]; Miller v. Filter (2007) 150 Cal.App.4th 652, 662 [prosecution]; Doe v. State of California (2017) 8 Cal.App.5th 832, 840 [informing plaintiff of duty to register as a sex offender, entering his information in the sex offender registry, communicating with local police about it, and disseminating his registration as a sex offender]; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [communications with district attorney and police to request formal investigation].)
- Eighth Cause of Action (Civil Conspiracy)
Carley’s claim against Eyster for civil conspiracy is premised on Eyster “putting pressure on [Carley] to either keep quiet or leave her job” through the following acts: an internal investigation, formal reprimand, demotion, loss of her duty weapon, “placement of her name on a so-called ‘Brady list’ ” and “voluntary (and unheard of) disclosure by [Eyster] of non-Brady information to defense attorneys related to her true report of being physically assaulted and battered by a police officer.”
All of these acts are protected by the anti-SLAPP statute. Since Eyster did not personally conduct the internal investigation, issue the reprimand, order the demotion, or strip Carley of her duty weapon, his conspiracy in these acts is based on statements he made to others, allegedly in the course and scope of his duties as District Attorney. (Indeed, Carley explicitly alleges that Eyster discussed her accusations against Waidelich with Ganter.) Placing Carley’s name on the Brady list, and allegedly disclosing non-Brady information to defense counsel, indicate statements of Eyster in connection with his handling of Brady matters as District Attorney. (See Neri, supra, 2010 U.S. Dist. Lexis 99839.) Because all of Eyster’s conduct underlying the conspiracy claim relates to statements “made in connection with an issue under consideration or review by [an] . . . executive or judicial body, or any other official proceeding authorized by law,” the conspiracy claim arises from protected activity. (§ 425.16, subd. (e)(2).)
- Carley’s Arguments
Carley contends the trial court erred because it was “[s]eemingly confused by separate issues of prosecutorial immunity” and protected activity when it granted Eyster’s motion to strike. While the court’s Final Statement of Decision does mention immunity and protected activity in the same discourse, the court plainly concluded that the gravamen of Carley’s claims was placing her on the Brady list, and the acts on which the complaint were based were protected under the anti-SLAPP statute. In any event, this court concludes that Eyster’s alleged acts constitute protected activity, and given the standard of de novo review, that is all that matters.
Carley also argues that Eyster’s alleged communications and placement of her on the Brady list are merely “the underlying facts which show the discrimination and retaliation on which these claims are, in fact[,] based.” Exactly. They are the acts on which the conclusion of discrimination is premised, and thus the acts from which Carley’s claims arise. This is not a case in which protected activity is merely incidental to the plaintiff’s claims; it is the exclusive basis for them.
In her reply brief, Carley states: “The gravamen of Plaintiff’s Complaint was not focused on EYSTER’s placement of her on the Brady List, but upon the discriminatory manner in which the actions were taken to harass her and create a hostile work environment as a way of protecting and favoring Officer Waidelich.” (Italics added.) But Carley misperceives anti-SLAPP analysis. The question is not the manner in which the acts were performed, the motive behind them, or the quality of the work environment that resulted, but on the specific acts that have been alleged to establish the elements of the claim, and whether those acts fall within the statutory definition of protected activity. (E.g., Wallace, supra, at p. 1186 [“But causes of action do not arise from motives; they arise from acts.”]; Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 268–269 [“Whether defendants had a gender-based discriminatory motive in not assigning new cases to plaintiff or in defunding her existing cases is a question that is entirely separate and distinct from whether, under the anti-SLAPP statute, plaintiff’s gender discrimination claims are based on defendants’ selection and funding decisions.”], overruled in part on another ground in Park, supra, 2 Cal.5th at p. 1071.)
Which brings us to the flaw in the remainder of Carley’s arguments. Carley contends that causes of action alleging discrimination, harassment, or retaliation in the workplace are not subject to the anti-SLAPP law, period. Our Supreme Court suggested otherwise long ago, instructing that “[n]othing in the [anti-SLAPP] statute itself categorically excludes any particular type of action from its operation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)
Carley nonetheless refers us to Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176 (Nam). There, an anesthesiology resident at UC Davis Medical Center sent an email that disagreed with the medical center’s policies. (Id. at p. 1180.) The email allegedly led to complaints about the resident, as well as warnings, investigatory leaves, and ultimately her dismissal. (Id. at pp. 1180–1184.) She sued the university for retaliation, discrimination, sexual harassment, wrongful termination, and other claims. (Id. at p. 1184.) The university brought a special motion to strike, which the trial court denied. (Ibid.) The court of appeal affirmed, accepting the resident’s assertion that the gravamen of her claims was not the defendant’s investigation of her complaints, but the defendant’s harassment and retaliation. (Id. at p. 1187.)
Carley’s reliance on Nam is unavailing. Nam was always at odds with other appellate decisions (e.g. Tuszynska, supra, 199 Cal.App.4th 257; Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510). And more recently, our Supreme Court put the matter to rest by expressly disapproving Nam in Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871 (Wilson).
In Wilson, the court reemphasized that even in cases asserting discrimination or retaliation, the acts alleged to constitute the discrimination or retaliation are the acts from which the causes of action arise and, if they fall within the scope of protected activity, the cause of action is subject to the anti-SLAPP statute. (Wilson, supra, 7 Cal.5th at
pp. 886–889.) The court concluded: “In sum, we conclude that for anti-SLAPP purposes discrimination and retaliation claims arise from the adverse actions allegedly taken, notwithstanding the plaintiff’s allegation that the actions were taken for an improper purpose. If conduct that supplies a necessary element of a claim is protected, the defendant’s burden at the first step of the anti-SLAPP analysis has been carried, regardless of any alleged motivations that supply other elements of the claim. We disapprove [Nam] to the extent [it] is inconsistent with this conclusion.” (Id. at p. 892.)
Carley also cites Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 and Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 for the proposition that the anti-SLAPP statute does not apply in discrimination or harassment cases. Nam relied on these cases in reaching its conclusion. (Nam, supra, 1 Cal.App.5th at pp. 1189–1190.) Neither case is on point factually, neither appears persuasive in light of our Supreme Court’s more recent directive in Wilson, and Carley does not even try to argue how they might be.
The court did not err in concluding that Carley’s third and eighth causes of action were subject to the anti-SLAPP statute.
B. Second Step: Probability of Prevailing
Once a defendant meets its burden of establishing that the cause of action arises from protected activity, the burden shifts to the plaintiff to establish a probability of prevailing on her claim. (§ 425.16, subd. (b).) Carley did not address this issue in the trial court, and the court concluded that Carley had not met her burden.
The trial court further ruled that Carley’s causes of action against Eyster would fail as a matter of law anyway, because the claims against him are subject to absolute immunity for prosecutors. Government Code section 821.6 provides 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.” This immunity is absolute. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209–1210 (Amylou).) Government Code section 821.6 not only “immunizes … the act of filing or prosecuting a judicial or administrative complaint, but also extends to actions taken in preparation for such formal proceedings,” including “[a]n investigation before the institution of a judicial proceeding” and “[a]cts undertaken in the course of an investigation.” (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033,1048; see Amylou, supra, 28 Cal.App.4th at pp. 1210–1212 [officers investigating crime were immune from liability for statements to friends and neighbors of the victim that suggested she was lying about what happened and might have been involved in the crime].) The decision to place an officer on the Brady List “involves an assessment of credibility, which is part of the prosecutor’s judicial function,” and “[p]rosecutors have absolute immunity for actions that fall under a prosecutor’s judicial function.” (Neri, supra, 2010 U.S. Dist. Lexis 99839 [discussing constitutional immunity in actions under 42 U.S.C. § 1983].)
Carley fails to make any argument in this appeal regarding her probability of prevailing. She therefore fails to establish that the court erred in dismissing the third and eighth counts of her complaint, or that the judgment should otherwise be reversed.
The judgment is affirmed. Appellant shall reimburse respondent for his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).) The matter is remanded for the trial court’s consideration of an award to respondent for attorney’s fees incurred on appeal. (Code Civ. Proc., § 425.16, subd. (c).)
Carley v. Eyster / A154713