Alliance for College-Ready etc. v. United Teachers L.A. CA2/5 ( 2021 )

Filed 4/14/21 Alliance for College-Ready etc. v. United Teachers L.A. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ALLIANCE FOR COLLEGE- B301112
READY PUBLIC SCHOOLS
INC., (Los Angeles County
Super. Ct. No. 19STCV06955)
Plaintiff and Appellant,
v.
UNITED TEACHERS LOS
ANGELES,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert S. Draper, Judge. Affirmed.
Robert Anthony Escalante; Sheppard, Mullin, Richter
& Hampton, Karin Dougan Vogel, Valerie E. Alter, for
Plaintiff and Appellant.
Bush Gottlieb, Ira L. Gottlieb, Erica Deutsch, Dexter
Rappleye; Altshuler Berzon, Jeffrey B. Demain, Meredith A.
Johnson, for Defendant and Respondent.
__________________________
Plaintiff and appellant Alliance for College-Ready
Public Schools, Inc. (Alliance), appeals from an order
granting a motion to strike under Code of Civil Procedure
section 425.16 (the anti-SLAPP statute)1 in favor of
defendant and respondent United Teachers Los Angeles (the
Union) in this malicious prosecution action. The trial court
granted the anti-SLAPP motion after finding no evidence
that the Union initiated the underlying administrative
complaint with malice. On appeal, Alliance contends it
established a probability of prevailing on the merits. The
Union responds that, in addition to the absence of evidence
of malice relied on by the trial court, Alliance cannot prevail
because it has not shown a favorable termination of the
underlying administrative action.
We conclude this purely legal issue may be raised for
the first time on appeal, and we agree that the decision in
the underlying administrative action did not establish
favorable termination for the purposes of malicious
1 SLAPP is an acronym for “Strategic Lawsuits Against
Public Participation.” (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) All further
statutory references are to the Code of Civil Procedure,
unless otherwise stated.
2
prosecution. The Union’s underlying allegations against
Alliance were dismissed based on lack of jurisdiction,
because Alliance was not a public school employer. The
complaint was granted in part, however, against a party
affiliated with Alliance based on a finding that the party
took retaliatory actions against a teacher. Because Alliance
was dismissed on technical grounds, the administrative law
judge did not determine whether Alliance was liable for the
retaliatory conduct of its agent. Dismissal of the allegations
against Alliance did not reflect the opinion of the
administrative law judge that Alliance was innocent as to
the entire action. As a result, Alliance cannot show the
underlying action terminated in its favor as required to
establish malicious prosecution. Therefore, we affirm the
judgment and dismiss the Union’s cross-appeal as moot.
FACTS AND PROCEDURAL BACKGROUND
Undisputed Facts
Alliance provides management services to several
charter schools within the geographic boundary of the Los
Angeles Unified School District (LAUSD). In March 2015, a
group of Alliance employees announced an effort to organize
support for a union among Alliance teachers and counselors.
Alliance sent a letter to its educators on October 27, 2015,
containing the following statements, among others: “We
remain disheartened by the divisive, dishonest, and
3
disruptive tactics used by [the Union].”; “[The Union]
continues to put adult interests over student needs.”; “[The
Union] seeks to stifle opposing viewpoints in the
unionization debate.”; “[The Union] falsely claims that
Alliance has retaliated against one pro-union teacher.”;
“Your signature on any document given to you by [the
Union], regardless of how the document is represented, could
be considered a legally binding signature in support of
unionization.” On October 28, 2015, the principal of one of
the charter schools, Alliance Ouchi-O’Donovan 6-12 Complex
(Ouchi), sent a letter to faculty and staff containing similar
statements.
On October 30, 2015, Alliance sent an email to
educators noting that a court order had been issued
requiring Alliance to allow Union representatives and union
organizers access to all Alliance school campuses after school
hours. The email included the statement, “Alliance staff
members are free to speak with [the Union] representatives
after regular working hours unless they or the persons they
speak with are working or supposed to be working.”
(Emphasis in original.) The email also stated, “[The Union]
will be on campus to talk to you about the possibility of
organizing Alliance teachers and counselors into its union.
[The Union] is not Alliance’s union and therefore does not
officially represent you or any Alliance teacher or counselor.”
On March 18, 2016, Alliance sent a flyer to its
educators stating that the Union’s members had approved a
30 percent increase in dues as a result of “a divisive
4
campaign built around a ‘Fund the Fight’ message attacking
public charter schools.” The letter also stated, “This latest
campaign continues [the Union’s] longstanding and well-
documented open hostility to the very existence of public
charter schools like Alliance. Last fall, [Union] President
Alex Caputo-Pearl again stated that charter schools ‘create a
race to the bottom that will hurt all schools and students
[and will] dismantle public education.’ The union has spent
tens of thousands of dollars on high-powered lobbyists to
decimate charter schools.”
Unfair Practice Charge
The Union filed a series of unfair practice charges
against Alliance and its affiliated schools with the Public
Employment Relations Board (PERB) arising from a variety
of conduct. The unfair practice charge at issue in this case
was filed on April 27, 2016, against Alliance and its affiliated
school, Alliance Cindy & Bill Simon Technology Academy
(Simon Tech) (LA-CE-6130-E) as follows. The charge alleged
that Alliance and its affiliated schools, including Simon
Tech, were public school employers within the meaning of
the Educational Employment Relations Act (EERA) (Gov.
Code, § 3540 et seq.). Although Alliance has a management
services agreement with each of the schools that it operates,
Alliance and the individual schools were a single employer
within the meaning of the EERA. Simon Tech retaliated
against a teacher who was a public supporter of the union,
5
and Alliance distributed literature to teachers with
misleading and coercive statements in violation of section
3543.5, subdivision (a), of the EERA.
The unfair practice charge quoted the statements
above, and similar statements, from the two letters sent in
October 2015. The Union asserted, “Collectively, these
letters contain rhetoric that extends beyond the lawful
expression of opinion or communication of existing facts.”
The charge alleged that the October 30, 2015 email
contained the following misstatements: the statement that
staff members were free to speak with union representatives
after regular working hours, with emphasis on the word
“after,” was a misstatement, because staff members can
speak with a union representative during regular working
hours if the staff member is not on duty; that the Union was
not Alliance’s union; and that the Union did not officially
represent any Alliance teacher or counselor.
The Union objected to the following statements in
Alliance’s March 18, 2016 flyer as mischaracterizations:
that union dues increased as a result of a “divisive”
campaign, when the increase was approved by over 80
percent of the members; President Caputo-Pearl’s “hostility
to the very existence of public charter schools,”; and that the
Union had spent “tens of thousands of dollars on high-
powered lobbyists to decimate charter schools.”
The charge described teacher Gina Manning’s actions
in support of union organization and the adverse actions
that she suffered which were alleged to be retaliatory. The
6
charge requested several remedies: (1) an order requiring
Alliance to stop distributing literature with misleading and
coercive statements in response to the union organizing
campaign; (2) an order requiring Alliance to acknowledge
Union representatives who represent educators during
meetings that may lead to discipline; (3) an order directing
Alliance to offer a teaching position at Simon Tech to the
individual teacher involved, and to cease retaliation against
the teacher for her exercise of her rights under the EERA;
(4) an order directing Alliance to cease and desist from
interfering with, restraining, coercing, imposing or
threatening to impose reprisals or discriminating against
employees because of the exercise of rights under the EERA;
(5) an order requiring a live reading to assembled employees
by Alliance of the terms of the order and for Alliance to post
notices containing the provisions of the order at all Alliance
schools and on the Alliance web page; and (6) an email from
Alliance providing notice of the provisions of the order to all
its employees. Copies of the October 2015 letters and email,
and the March 2016 flyer, were attached to the charge.
PERB’s general counsel concluded that the allegations
of the charge demonstrated a prima facie case of wrongful
interference with employee rights protected by the EERA,
and retaliation against an employee for exercising those
rights. On December 12, 2016, PERB prepared and issued a
complaint solely against Alliance alleging a claim for
unlawful speech based on the four communications identified
in the charge and a claim for retaliation. Rather than
7
identify particular statements or phrases that were alleged
to violate the EERA, the complaint included the entire text
of Alliance’s written communications. In addition, the
complaint stated that Alliance, acting through its agent
Simon Tech, took adverse actions against a teacher who
supported union organization by placing her in a “teacher
action plan” program and continuing her participation in the
plan on several occasions, initiating an investigation of her,
issuing a warning letter on April 8, 2016, and not renewing
her employment.
On January 3, 2017, Alliance answered the complaint,
denying any violation of the EERA. Alliance asserted the
affirmative defense that PERB lacked jurisdiction, because
Alliance was not a “public school employer” within the
meaning of EERA, section 3540.1, subdivision (k). Instead,
Alliance argued that it was an employer as defined under
the National Labor Relations Act, 29 U.S.C. section 151 et
seq., the National Labor Relations Board had exclusive
jurisdiction over Alliance, and the National Labor Relations
Act preempted the proceedings against Alliance.
A hearing was held on June 26, 27, 29, and 30, 2017,
before an administrative law judge (ALJ). On the first day
of the hearing, the Union moved to amend the complaint to
include additional factual allegations and to add Simon Tech
and Ouchi as respondents. The ALJ denied the motion to
add factual allegations, but granted the motion to add the
two schools as respondents. An amended complaint was
filed. Transcripts were submitted of testimony from several
8
individuals who testified in other proceedings between the
Union and Alliance.
Following the Union’s case-in-chief, the respondents
moved to dismiss the complaint for failure to establish a
prima facie case of interference or retaliation. The ALJ
granted the motion with regard to the interference claim,
but denied the motion with respect to the retaliation claim.
Following post-hearing briefs, the matter was submitted for
decision on August 30, 2017.
On December 28, 2017, PERB issued a decision in a
different matter, United Teachers Los Angeles v. Alliance
College-Ready Public Schools, et al. (2017) PERB Decision
No. 2545 (Alliance I). PERB concluded Alliance did not fall
within the statutory definition of a public school employer,
and PERB could not assert jurisdiction by finding Alliance to
be a “single employer” with an entity over which PERB did
have jurisdiction.
The ALJ issued a proposed decision on January 11,
2018. The findings of fact stated that Alliance is a non-profit
public benefit corporation affiliated with a network of
charter schools within the geographic boundary of LAUSD.
Simon Tech and Ouchi are individual charter schools within
the network. The individual schools are public school
employers within the meaning of the EERA. Alliance has a
management services agreement with each school to provide
services like payroll, accounting, and curriculum guidance.
Applying the precedent of Alliance I, the ALJ found
Alliance did not meet the definition of a public school
9
employer under the EERA, and therefore, PERB could not
assert jurisdiction over Alliance. The ALJ dismissed the
allegations against Alliance on that basis.
In a footnote, the ALJ acknowledged that Alliance I
allowed individual schools to potentially be held liable for
Alliance’s conduct under an agency or single employer
theory. The ALJ concluded that additional trial proceedings
were not necessary, however, because the liability of
individual schools for Alliance’s conduct was not at issue.
The ALJ had already previously found Alliance’s
communications to staff did not constitute unlawful
interference and dismissed the allegations. “The remaining
allegation regarding Manning’s non-reelection was a local
decision made at Simon Tech. Therefore, the issues of
whether Alliance was Simon Tech’s agent or its schools
constituted a single employer are not implicated.”2
2 Footnote 9 of the ALJ’s decision provided in full: “In
Alliance I, supra, PERB Decision No. 2545, the Board did
note that individual schools in Alliance’s network could
potentially be found liable for Alliance’s conduct under an
agency theory or a single employer theory where all the
schools in the Alliance network constituted a single
employer. In this instance, I do not find it necessary to
reopen the record or take additional briefing on either
theory. During the hearing, I already found that Alliance’s
October 27, October 30, and March 18 communications
(along with Tramble’s October 28 letter) did not constitute
unlawful interference, and those allegations were dismissed.
Whether Alliance was acting as an agent of the Schools or its
schools constituted a single employer when it made the
10
Next, the decision discussed the claim for unlawful
speech. In a footnote, the ALJ explained that although the
allegations against Alliance must be dismissed for lack of
jurisdiction, the decision addressed why Alliance’s conduct
did not constitute unlawful interference because the
unlawful speech allegations had been dismissed during the
hearing on this basis and the analysis was pertinent to the
discussion of retaliation.
The ALJ determined that the Union had not
established a prima facie case for unlawful interference
based on the four written communications. After describing
the October 27, 2015 letter, the judge concluded, “While the
letter uses strong language in setting forth Alliance’s
opinions, it does not contain a threat of reprisal or promise a
benefit and is permissible employer speech.” The Union had
asserted the October 28, 2015 letter contained
misrepresentations that made the letter coercive, but the
Union failed to identify any misrepresentations or present
evidence to rebut the statements in the letter. The ALJ
found both letters contained permissible employer speech
and dismissed the allegations.
statements would not change the finding that the
statements did not violate EERA. The remaining allegation
regarding Manning’s non-reelection was a local decision
made at Simon Tech. Therefore, the issues of whether
Alliance was Simon Tech’s agent or its schools constituted a
single employer are not implicated.”
11
The Union had asserted that the October 30, 2015
email contained misrepresentations that made it coercive,
because teachers may speak to union organizers during
working hours so long as they are off duty at the time. The
ALJ concluded that the statement was permissible speech
when viewed in context. It had been written in response to a
temporary restraining order issued against the respondents
and referred to the trial court’s order to allow access to
Union representatives during after school hours. It also did
not state that teachers cannot meet with Union
representatives during working hours. Viewed in its
totality, the ALJ determined that the October 30, 2015 email
did not contain misrepresentations that would make the
email coercive, nor did it contain a threat of reprisal or
promise a benefit. Therefore, the allegation was dismissed
as to the October 30, 2015 email.
In connection with the March 2018 flyer, the ALJ noted
that no evidence had been presented to rebut the statement
that dues were increased. The expression of Alliance’s
opinion was based on factual claims, and the Union did not
present evidence to rebut the claims or evidence of its
President’s views on charter schools, use of funds for
lobbyists, and political activities. The Union did not
establish a prima facie case for unlawful interference based
on the March 2018 flyer and the allegation was dismissed.
The ALJ found the retaliation claim was based solely
on conduct by Simon Tech: “The allegation that Manning
was retaliated against for engaging in a protected activity
12
relates only to Simon Tech because [Simon Tech’s principal
Clarence] Miller was the ultimate decision maker in all of
the alleged adverse actions taken against Manning.
Although he received guidance from the Home Office, he was
not required to comply with those recommendations, and the
record reflects principals at Alliance schools are free to
disregard the Home Office’s recommendations and make
their own decisions.” The ALJ found that the employee at
issue engaged in protected activity under the EERA and
Simon Tech knew the employee exercised those rights.
The ALJ made the following findings with respect to
the adverse actions that Simon Tech instituted against the
teacher after Simon Tech became aware that she had
engaged in protected activity. Simon Tech placed the
teacher on a performance improvement plan on January 15,
2016, after she had shown improvement under a prior plan.
On March 4, 2016, Simon Tech made a recommendation not
to renew the teacher’s employment contract, which triggered
a review of her file by Alliance. After completing its review,
Alliance recommended that the teacher be placed on another
performance improvement plan instead of non-renewal of
her contract. Miller agreed with Alliance’s recommendation
and did not finalize the March 4, 2016 non-renewal. An
investigation was opened on April 1, 2016, based on reports
about comments that the teacher made in class. With
respect to these adverse actions, the ALJ found the Union
failed to establish a prima facie case for retaliation and the
allegations were dismissed.
13
Simon Tech placed the teacher on another performance
improvement plan on April 4, 2016. The April 4, 2016
performance improvement plan represented a departure
from established procedures. It included more performance
directives, and more detailed directives, based on
recommendations that Simon Tech received from Alliance.
The plan stripped the teacher of her discretion and
autonomy as a professional, and made the process more
onerous. Miller and the assistant principal of Simon Tech
expressed union animus at the meeting with the teacher to
inform her of this plan, and observed the teacher more
frequently during the course of this plan. In addition to
Simon Tech’s observation and oversight of the teacher in
April 2016, Alliance observed the teacher and provided
feedback.
Simon Tech gave the teacher a warning letter dated
April 7, 2016, which concluded that the teacher had made
inappropriate comments in class. The warning letter also
departed from established procedures and showed evidence
of a cursory investigation. When the teacher appealed the
warning letter, she met with individuals from Simon Tech
and Alliance.
Simon Tech recommended non-renewal of the teacher’s
contract again. Alliance conducted another file review and
also recommended non-renewal. A final decision was made
on May 13, 2016, not to renew the teacher’s employment
contract.
14
The ALJ concluded that the Union established a prima
facie case for retaliation based on the April 4, 2016 plan, the
April 7, 2016 warning letter, and the May 13, 2016 decision
not to renew the teacher’s contract, because the decision not
to renew the contract was based in part on the adverse
actions taken in April. Simon Tech failed to meet its burden
to show that it would have issued the April 4, 2016 plan or
the April 7, 2016 warning letter in the absence of the
teacher’s protected activity, although Simon Tech met its
burden as to the May 13, 2016 decision not to renew her
contract, because there was a sufficient basis for the decision
apart from the adverse actions in April.
The ALJ ordered Simon Tech to cease and desist from
retaliating against employees for engaging in protected
activity. The ALJ also ordered Simon Tech to rescind the
April 4, 2016 performance improvement plan and the April
7, 2016 warning letter that were issued in retaliation for
engaging in protected activity. In addition, Simon Tech was
ordered to post a notice signed by an authorized
representative incorporating specific terms that were stated
in the order. All other allegations of the complaint were
dismissed. The decision became final as of February 7, 2018.
Malicious Prosecution Complaint
On February 28, 2019, Alliance filed a complaint for
malicious prosecution against the Union. Alliance operates
28 schools within the jurisdiction of the Los Angeles Unified
15
School District. After the Union announced that it was
organizing support to be recognized as the exclusive
bargaining representative for staff at the schools, the Union
requested a meeting with Alliance’s board of directors to
discuss a fair and neutral process for organizing. Alliance
refused to enter into an agreement. Between April 7, 2015,
and June 4, 2018, the Union filed a series of 21 “unfair
practice charges” with the PERB against Alliance or its
affiliated schools based on a variety of conduct, including
allegations that 30 separate written communications
violated the Educational Employment Relations Act (EERA).
Administrative law judges dismissed the claims. The Union
appealed most of the administrative decisions, but did not
appeal the claim in the underlying administrative action.
The charge was commenced and continued in bad faith,
without probable cause, because the Union did not, and
could not, reasonably believe there were valid grounds for
the action based on the four written communications.
Alliance has suffered damages, including attorney fees,
costs, expenditures and harm to its reputation. The Union
acted with oppression, fraud, malice, and/or without regard
to Alliance’s rights, so Alliance is entitled to punitive
damages as well.
Anti-SLAPP Proceedings
On April 3, 2019, the Union filed an anti-SLAPP
motion. The Union argued that the unfair practice charge
16
was activity protected by the anti-SLAPP statute, and
Alliance could not show a probability of prevailing on the
merits. The Union asserted that the unfair practice charge
was supported by probable cause. Under the detailed
regulatory process for unfair practice charges, a PERB agent
must conduct an independent investigation and review the
charge to determine whether an unfair practice has been
committed. The PERB agent must make a determination
whether to dismiss the charge or issue a complaint if the
charge or the evidence was sufficient to establish a prima
facie case. The Union argued that PERB’s decision to issue a
complaint was an administrative finding of merit that
established probable cause under the “interim adverse
judgment” rule. The Union also argued that apart from the
PERB decision, the underlying facts and law established
probable cause. In addition, Alliance could not prove malice
or improper purpose. The Union also argued that PERB had
exclusive jurisdiction to determine whether unfair practice
charges were justified. Alliance had failed to exhaust the
authority vested in PERB to address bad faith litigation.
Alliance filed an opposition to the anti-SLAPP motion.
Alliance argued that it was not required to exhaust
administrative remedies for bad faith litigation. PERB’s
complaint processing was not a determination on the merits,
because PERB accepted the Union’s allegations as true and
issued a complaint to resolve disputed facts. Alliance noted
the Union had not raised the issue of whether the prior
action was pursued to a legal termination favorable to
17
Alliance, and therefore, Alliance addressed the other
elements of malicious prosecution. Alliance argued that
there was no probable cause for the interference claim,
because the Union alleged the communications contained
false statements, but failed to submit proof of any
misrepresentations. Alliance argued that malice could be
inferred from the Union’s lack of probable cause.
The Union submit a reply arguing that a prima facie
case, as evidenced by issuance of the complaint, was a higher
standard than probable cause, and the interim adverse
judgment rule applied. In addition, PERB’s comprehensive
statutory scheme precluded any action for malicious
prosecution, especially when Alliance failed to exhaust
administrative remedies.
The Union’s attorney submitted a declaration from
PERB’s supervising regional attorney describing the process
undertaken at PERB to investigate unfair practice charges
and issue complaints when there is a prima facie showing by
the charging party of a violation of the public employment
labor laws administered by PERB. In addition, the Union
provided a copy of the statement that Alliance submitted to
PERB urging dismissal of the charge before the complaint
was issued.
Alliance filed an objection to the Union’s new evidence
and the new issues raised in the reply. A hearing was held
on July 19, 2019. The Union argued the evidence showed
there was probable cause for the underlying administrative
complaint. Alliance had admitted all of the factual
18
allegations related to the communications. There were no
allegations of facts in the complaint which required the
Union to present evidence at the administrative hearing. No
paragraph alleged that a particular statement was a factual
misrepresentation. The Union had believed the
communications misstated the law. For example, a
nonexclusive union may represent an individual employee,
and the Union represented some individual employees at
Alliance schools for some purposes, so it was a misstatement
to say that the Union did not represent any teacher or
counselor. The case law defining the standard for unlawful
communications interfering with employment rights was
continually evolving, not simply determined by whether a
threat or promise was made. PERB had consistently held
that statements which may not appear unlawful on their
face may violate may violate the EERA when considered in
context, and the fact that the allegations of the complaint did
not track the allegations of the Union’s charge showed the
independent nature of PERB’s investigation. The trial court
took the matter under submission.
The trial court granted the anti-SLAPP motion on July
22, 2019. The court found that PERB’s preliminary
investigation was not an independent investigation into the
facts, but a determination of whether the charging document
stated a prima facie case. The determination of whether the
communications attached to the charge constituted
interference required an analysis of factual circumstances
surrounding their issuance, such as whether statements
19
constituted mischaracterizations. The administrative law
judge found that the Union presented no evidence of the
factual circumstances. The anti-SLAPP motion could not be
granted based on finding the claims had probable cause,
either as a result of PERB’s preliminary determination or on
the substantive merits. The court found, however, that
Alliance had not made a showing of malice. The fact that
the Union had not presented evidence to show the
communications were false was insufficient to prove the
Union made the allegations with improper motive. There
was no additional evidence of intent, such as a failure to
conduct discovery or allegations copied from a prior lawsuit
without regard to the underlying facts. As a result, Alliance
failed to meet its burden to show a probability of prevailing,
and the anti-SLAPP motion was granted.
Alliance filed a timely notice of appeal. The Union filed
a notice of cross-appeal.
DISCUSSION
Anti-SLAPP Statute and Standard of Review
“Courts construe the anti-SLAPP statute broadly to
protect the constitutional rights of petition and free speech.”
(Anderson v. Geist (2015) 236 Cal.App.4th 79, 84.)
“Resolution of an anti-SLAPP motion involves two steps.”
(Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) In the
first step, the moving party must establish that the claim at
20
issue arises from free speech or petitioning activity protected
by section 425.16. (Ibid.) The first step is not disputed in
this case, because the anti-SLAPP statute applies to
malicious prosecution claims. (Daniels v. Robbins (2010) 182
Cal.App.4th 204, 214–215.)
Once the moving party establishes that the claim
arises from protected activity, the burden shifts to the
opposing party to demonstrate a probability of prevailing on
the merits. (Baral, supra, 1 Cal.5th at p. 384.) This second
step has been compared to a “summary-judgment-like
procedure.” (Taus v. Loftus (2007) 40 Cal.4th 683, 714;
Baral, supra, 1 Cal.5th at p. 384.) “The court does not weigh
evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. It accepts the plaintiff’s
evidence as true, and evaluates the defendant’s showing only
to determine if it defeats the plaintiff’s claim as a matter of
law. [Citation.] ‘[C]laims with the requisite minimal merit
may proceed.’ [Citation.]” (Baral, supra, at pp. 384–385.)
We review an order granting or denying an anti-
SLAPP motion de novo. (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1067.)
“‘We exercise our independent judgment to determine not
only whether the anti-SLAPP statute applies, but whether
the complainant has established a reasonable probability of
prevailing on the merits. [Citation.]’ [Citation.]” (Greco v.
Greco (2016) 2 Cal.App.5th 810, 820.)
21
We review the trial court’s decision, not its rationale.
“If the trial court’s decision denying an anti-SLAPP motion
is correct on any theory applicable to the case, we may affirm
the order regardless of the correctness of the grounds on
which the lower court reached its conclusion.” (City of
Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301, 1307;
see also Bernardo v. Planned Parenthood Federation of
America (2004) 115 Cal.App.4th 322, 357 [appellate court
decides independently whether ruling on anti-SLAPP motion
was correct, but need not decide propriety of trial court’s
reasoning].)
Malicious Prosecution
Alliance contends that it established a probability of
prevailing on the merits of its claim for malicious
prosecution. In addition to the grounds raised in the trial
court, the Union contends for the first time on appeal that
Alliance cannot show favorable termination of the
underlying administrative action. In our de novo review of
the anti-SLAPP proceedings, we conclude the Union may
raise this purely legal issue for the first time on appeal. We
agree that the underlying administrative decision did not
constitute a favorable termination, because the complaint
was dismissed against Alliance on technical grounds and
granted in part as to an affiliated party.
22
A. Elements and Appealability
“To establish a claim for malicious prosecution, a
plaintiff must plead and prove that the prior action: (1) was
commenced by or at the direction of the defendant and was
pursued to a legal termination in the plaintiff's favor; (2) was
brought without probable cause; and (3) was initiated with
malice. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965–966
(Zamos).)” (Olivares v. Pineda (2019) 40 Cal.App.5th 343,
353–354; Crowley v. Katleman (1994) 8 Cal.4th 666, 676.)
Although the general rule is that issues which were not
raised in the trial court cannot be raised for the first time on
appeal, appellate courts have discretion to consider a pure
question of law on undisputed facts. (Sea & Sage Audubon
Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) In
this case, after the Union satisfied the first prong of the anti-
SLAPP analysis, the burden shifted to Alliance to show a
probability of success on the merits. Regardless of the issues
that the Union anticipated in the trial court, Alliance had to
present evidence to show that it could prevail on each
element of its malicious prosecution claim. The trial court’s
finding that there was no evidence of malice did not relieve
Alliance’s burden to show that it can prevail with respect to
all of the elements, including the foundational element of a
favorable termination on the merits. Favorable termination
presents a purely legal issue on undisputed facts, which we
may consider for the first time on appeal as part of our de
novo review of the anti-SLAPP ruling. Because there was no
23
adequate showing on the element of favorable termination,
we need not consider whether Alliance’s evidence of malice
met the minimal merit threshold.
B. No Favorable Termination on the Merits
The Union contends that Alliance failed to show the
underlying administrative complaint terminated in its favor
on the merits as required to support malicious prosecution.
We agree.
“‘“‘The theory underlying the requirement of favorable
termination is that it tends to indicate the innocence of the
accused, and coupled with the other elements of lack of
probable cause and malice, establishes the tort [of malicious
prosecution].’ [Citations.] [¶] It is not essential to
maintenance of an action for malicious prosecution that the
prior proceeding was favorably terminated following trial on
the merits. However, termination must reflect on the merits
of the underlying action. [¶] It is apparent ‘favorable’
termination does not occur merely because a party
complained against has prevailed in an underlying action.
While the fact he has prevailed is an ingredient of a
favorable termination, such termination must further reflect
on his innocence of the alleged wrongful conduct. If the
termination does not relate to the merits—reflecting on
neither innocence of nor responsibility for the alleged
misconduct—the termination is not favorable in the sense it
would support a subsequent action for malicious
24
prosecution.” ([Citation], italics in original, fn. omitted.)’”
(Robbins v. Blecher (1997) 52 Cal.App.4th 886, 893
(Robbins).)
“‘The key is whether the termination reflects on the
underlying defendant’s innocence. [Citations.] If the
resolution of the underlying litigation “leaves some doubt as
to the defendant’s innocence or liability[, it] is not a
favorable termination, and bars that party from bringing a
malicious prosecution action against the underlying
plaintiff.” ([Citation], italics in original.) “‘A termination [by
dismissal] is favorable when it reflects “the opinion of
someone, either the trial court or the prosecuting party, that
the action lacked merit or if pursued would result in a
decision in favor of the defendant.”’ [Citation.] [¶] . . . The
focus is not on the malicious prosecution plaintiff’s opinion of
his innocence, but on the opinion of the dismissing party.”
([Citation], italics in original.) “The test is whether or not
the termination tends to indicate the innocence of the
defendant or simply involves technical, procedural or other
reasons that are not inconsistent with the defendant’s guilt.”
[Citations.]’” (Robbins, supra, 52 Cal.App.4th at p. 893.) “A
voluntary dismissal on technical grounds, such as lack of
jurisdiction, laches, the statute of limitations or prematurity,
does not constitute a favorable termination because it does
not reflect on the substantive merits of the underlying
claim.” (Id. at p. 894.)
In addition, there must be a favorable termination of
the entire action. (Crowley v. Katleman, supra, 8 Cal.4th at
25
p. 686.) When the termination is other than by a judgment
on the merits, the court examines the record to see if the
disposition reflects the opinion of the court or the
prosecuting party that the action would not succeed, and if
there is a dispute as to the circumstances of the termination,
the determination of the reasons underlying the dismissal is
a question of fact. (Sycamore Ridge Apartments LLC v.
Naumann (2007) 157 Cal.App.4th 1385, 1399.)
The interpretation of a judgment is a question of law
for the court. (Mendly v. County of Los Angeles (1994) 23
Cal.App.4th 1193, 1205.) “In construing orders they must
always be considered in their entirety, and the same rules of
interpretation will apply in ascertaining the meaning of a
court’s order as in ascertaining the meaning of any other
writing. If the language of the order be in any degree
uncertain, then reference may be had to the circumstance
surrounding, and the court’s intention in the making of the
same.” (Roraback v. Roraback (1940) 38 Cal.App.2d 592,
596; see Concerned Citizens Coalition of Stockton v. City of
Stockton (2005) 128 Cal.App.4th 70, 77.)
In this case, the Union brought claims against Alliance
for unlawful communications and retaliation, but the ALJ
dismissed all of the allegations against Alliance on the
technical ground that PERB lacked jurisdiction over
Alliance; the dismissal was not a favorable termination on
the merits. The record shows the ALJ also dismissed the
unlawful communication allegations against Alliance on the
merits as well. However, the ALJ denied Alliance’s motion
26
to dismiss the allegations of retaliation during the hearing
and never dismissed the retaliation allegations against
Alliance on the merits. In fact, the ALJ found Alliance’s
affiliated party Simon Tech was liable for two retaliatory
acts and ordered several remedies that the Union requested
related to retaliation.
Alliance contends that the ALJ found Alliance was not
liable for the retaliatory conduct and the issue of agency was
irrelevant, because the retaliatory conduct consisted of local
decisions by Simon Tech. Alliance’s interpretation extends
too far. The ALJ concluded it was not necessary to
determine whether individual schools could be held liable for
Alliance’s conduct, because Simon Tech engaged in the
retaliatory conduct directly. Alliance’s conduct was not at
issue, because Alliance was not the ultimate decision maker
and Simon Tech was free to disregard Alliance’s guidance.
However, the ALJ did not dismiss the retaliation allegations
against Alliance based on the acts of its agent Simon Tech,
and the ALJ did not resolve any issue concerning Alliance’s
potential liability for Simon Tech’s retaliatory conduct.
Based on our review of the record, the disposition of the
underlying administrative action does not reflect the ALJ’s
opinion that Alliance was not liable for retaliatory conduct
by Simon Tech and could not be held liable in a different
forum for Simon Tech’s retaliatory conduct on an agency
theory. Alliance did not meet its burden to show a favorable
termination of the entire administrative action on the
merits.
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Cross-Appeal is Moot
In the Union’s cross-appeal, the Union contends
Alliance failed to submit sufficient evidence on the element
of probable cause. As stated above, we review the trial
court’s ruling, not its rationale. Moreover, in light of our
affirmance of the ruling appealed from, the cross-appeal is
moot and must be dismissed. (Jones & Matson v. Hall
(2007) 155 Cal.App.4th 1596, 1611 [protective cross-appeal
dismissed as moot upon affirming the rulings appealed from
because “only a party who is aggrieved may appeal from a
judgment or appealable order”]; Hewlett v. Squaw Valley Ski
Corp. (1997) 54 Cal.App.4th 499, 546 [dismissing protective
cross-appeal as moot upon affirmance of opposing party’s
appeal], superseded in part by statute on another ground as
stated in United Farm Workers of America v. Dutra Farms
(2000) 83 Cal.App.4th 1146, 1163–1164.)
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DISPOSITION
The judgment is affirmed, and the cross-appeal of
respondent United Teachers Los Angeles is dismissed as
moot. Respondent United Teachers Los Angeles is awarded
its costs on appeal.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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