Sanchez v. CoreCivic of Tennessee CA4/1 ( 2023 )

Filed 4/18/23 Sanchez v. CoreCivic of Tennessee CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MONICA NICOLE WILLIAMS D080285
SANCHEZ,
Plaintiff and Respondent,
(Super. Ct. No. 37-2021-
v. 00046382-CU-WT-CTL)
CORECIVIC OF TENNESSEE, LLC et
al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Affirmed and remanded.
Gleason and Favarote, Paul M. Gleason and Jing Tong, for Defendants
and Appellants.
Bodell Law Group, Daniel D. Bodell; Williams Iagmin and
Jon R. Williams, for Plaintiff and Respondent.
This appeal revolves around a single paragraph in a complaint that
contains 127 paragraphs and asserts ten causes of action. Defendants
CoreCivic of Tennessee and Bessy Glaske appeal from the trial court’s order
denying their special motion to strike as a strategic lawsuit against public
participation (SLAPP) eight of the ten causes of action asserted by plaintiff
Monica Nicole Williams Sanchez. In the underlying retaliation and
discrimination action, Sanchez alleges that defendants harassed, retaliated
against, and wrongfully terminated her for reporting the company’s unlawful
and unethical conduct and for seeking medical leave to which she was legally
entitled. Defendants argue in their anti-SLAPP motion that eight of
Sanchez’s claims are based on an alleged conversation between Glaske and a
governmental agency, which Sanchez references in one paragraph in her
general allegations, and her claims thus arise from protected speech and
activity.
On de novo review, we conclude that defendants’ alleged liability is not
predicated on any protected activity, and the trial court thus properly denied
their anti-SLAPP motion. Accordingly, we affirm the trial court’s order. We
also find that defendants’ anti-SLAPP motion, and their appeal of the denial
of that motion, are devoid of merit, and on that basis grant Sanchez’s request
for an award of fees and costs on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
CoreCivic of Tennessee, LLC (CoreCivic) is a for-profit, publicly traded
company headquartered in Tennessee that owns and manages private
prisons and detention centers on contract with federal, state, and local
governments. Specifically, CoreCivic designs, builds, manages, and operates
correctional facilities and detention centers for the Federal Bureau of
Prisons, Immigration and Customs Enforcement, the United States Marshals
Service, as well as state and county facilities across the United States.
CoreCivic operates one such correctional facility, located on Boston Avenue in
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San Diego, under contract with the California Department of Corrections and
Rehabilitation (CDCR).
Sanchez is a San Diego resident who was employed by CoreCivic and
its predecessors from 1994 until her termination in 2021. She has held a
variety of roles at CoreCivic, including program manager, senior case
manager, case manager, job developer, disciplinary hearing officer and clerk.
She was named facility director at the Boston Avenue facility (the facility) in
2013.
Defendant Bessy Glaske is a managing director for CoreCivic and one
of Sanchez’s direct supervisors during her employment with CoreCivic.
Glaske controlled all aspects of Sanchez’s employment, including her hiring
and termination, setting her compensation terms, and setting the terms of
the employment agreements.
B. Factual Background as Alleged in Complaint
In May 2021, the CDCR made an unannounced visit to the facility and
expressed concerns to Sanchez about CoreCivic. The CDCR complained
about CoreCivic’s failure to maintain staffing levels, its lack of programming,
the amount and quality of food served to inmates, and its failure to test for
fentanyl. Sanchez had previously made identical complaints to CoreCivic
and her supervisor Glaske, which she reminded Glaske of on the day of the
CDCR visit.
In August 2021, Sanchez had a meeting with Glaske and a senior
director at CoreCivic to discuss Sanchez’s leadership potential and future
goals with the company. Glaske told Sanchez she was considered a high
performer and was slated toward accelerated development, and she
scheduled a meeting with Sanchez for the following month to discuss future
promotions.
3
Later that month, Sanchez advised Glaske that she intended to take
leave pursuant to the Family Medical Leave Act (FMLA) and California
Family Rights Act (CFRA) due to grief-related health issues after her mother
had passed away. She told Gaske that she had been experiencing an
extremely hard time dealing with her mother’s recent death but had been
forced to miss numerous grief counseling sessions and parent loss grief
groups because of work demands. Sanchez also told Glaske that she had
gotten a dog from the humane society that was intended for emotional
support, but the dog had not alleviated her grief. Sanchez further informed
Glaske that she was under the care of a psychiatrist but was unable to take
her prescribed medication because it made her drowsy and she was on call for
work every hour of every day.
In September 2021, Sanchez learned about an incident relating to a
monthly CoreCivic bill that had been presented to a CDCR employee for
approval. The CDCR employee signed it but also wrote a note on the bill
stating something to the effect of “waste of money, fraud, lack of
programming, only three counselors.” After a CoreCivic accountant received
the bill and note, she showed it to Sanchez, who expressed concern and stated
that the note must be reported to CoreCivic and Glaske. Instead, the
accountant ripped up the note. Sanchez was alarmed and reported the
incident to Glaske via email and phone. Sanchez was eventually able to
locate the ripped-up note from the accountant’s trash bin after the accountant
had originally claimed she had placed it in the shredding bin. Sanchez taped
the note back together and emailed the recovered note to Glaske.
Later that day, Sanchez again spoke with Glaske to confirm she would
be taking FMLA/CRFA leave. Glaske was not receptive to this news and
insisted Sanchez was not eligible to take leave. Sanchez informed Glaske
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that she had already confirmed with CoreCivic’s human resources manager
that she was eligible, but Glaske instructed Sanchez to confirm her eligibility
with CoreCivic’s human resources generalist.
Sanchez was unable to reach the human resources generalist but
confirmed again with the human resources manager that she was eligible for
FMLA/CRFA leave. Sanchez then emailed excerpts of CoreCivic’s
FMLA/CRFA policy to Glaske to demonstrate her eligibility and informed
Glaske that she would be starting her leave on September 20, 2021. That
evening, Sanchez called Glaske and complained that Glaske’s efforts to
discourage her from taking leave were upsetting. Shortly after that
conversation, Glaske responded to Sanchez’s email from earlier in the day
regarding her leave eligibility and indicated she was happy that Sanchez got
the information that she needed. According to Sanchez, this was an attempt
to deflect Sanchez’s criticism of Glaske during their phone call.
The next day, Sanchez met with her psychiatrist to discuss her leave,
and they determined that Sanchez would take FMLA/CFRA for eight weeks,
with Sanchez’s last workday on September 17, 2021. Following this meeting,
Sanchez spoke with Glaske to confirm again that Sanchez’s last day of work
prior to her leave would be that upcoming Friday and to inquire about
Glaske’s meeting with the CDCR. Glaske told Sanchez that the meeting with
the CDCR went well for the most part, but the CDCR representatives
complained about the lack of programming and counselors. At no time did
Glaske indicate that the CDCR had concerns with Sanchez’s performance as
facility director.
On September 16, 2021, the day before Sanchez’s last day of work
before her FMLA/CFRA leave began, Glaske and CoreCivic advised her that
although they were happy with her performance, the CDCR wanted a change
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of leadership at the facility, and CoreCivic was therefore terminating her
immediately. Glaske and CoreCivic then presented Sanchez with a severance
agreement providing that in exchange for approximately $50,000 (six months
of salary) minus withholdings, Sanchez would give up all of her rights to sue
CoreCivic and its employees, keep the settlement confidential, and agree that
CoreCivic was not admitting to any fault whatsoever. The severance
agreement further stated: “Employee also acknowledges that Employee has
been properly provided any leave of absence that Employee may be or may
have been entitled to under the Family and Medical Leave Act and has not
been subjected to any improper treatment, conduct, or actions due to a
request for or taking such leave. Employee acknowledges that Employee has
had the opportunity to provide the Company with notice of any and all
concerns regarding suspected ethical and compliance issues or violations on
the part of the Company or the Released Parties.”
C. Complaint
Sanchez timely filed charges of discrimination with the Department of
Fair Employment and Housing (DFEH) against defendants and received
right to sue letters. She then filed suit against defendants, asserting ten
causes of action: (1) retaliation in violation of Labor Code section 1102.5;
(2) wrongful termination and retaliation in violation of public policy;
(3) unfair business practices in violation of Business and Professions Code
section 17200 et seq.; (4) intentional infliction of emotional distress;
(5) employment discrimination in violation of the Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12940 et seq.); (6) failure to accommodate
in violation of FEHA (Gov. Code, § 12940 et seq.); (7) retaliation in violation
of FEHA (Gov. Code, § 12940 et seq.); (8) harassment based on medical
condition and election to take medical leave in violation of FEHA (Gov. Code,
6
§ 12940 et seq.) (9) violation of Civil Code section 3344; and (10) failure to
provide personnel records in violation of Labor Code section 1198.5. She
asserted the fourth claim against Glaske, the eighth claim against both
Glaske and CoreCivic, and the remaining claims against only CoreCivic.
Sanchez alleged that defendants harassed, discriminated against, and
retaliated against her in response to her medical condition and decision to
take medical leave, as well as her discovery of and complaints about illegal,
unethical, and unsafe practices of defendants and others at the facility
relating to facility staffing and operations. Sanchez also alleged that, despite
stating they were pleased with her performance, defendants did not offer to
transfer her to another facility or put her on a performance improvement
plan. According to Sanchez, this is because defendants wrongfully
terminated her employment in response to her complaints about defendants’
illegal, unethical, and unsafe practices and her impending medical leave.
The complaint alleged that Glaske was intimately aware of Sanchez’s
urgent need to take FMLA/CFRA leave but terminated her anyway. Sanchez
alleged that, during Glaske’s meeting with the CDCR, she disparaged
Sanchez’s performance to deflect the CDCR’s criticism from her own
performance and save her own job. According to Sanchez, Glaske’s
statements denigrating her performance were demonstrably false, and
Glaske knew her comments would ruin Sanchez’s career. She further alleged
that her termination and Glaske’s statements to the CDCR were motivated
by Glaske’s personal animus toward Sanchez and were an attempt to silence
her whistleblowing.
Sanchez claimed that defendants’ illegal conduct resulted in her
financial and emotional harm. She sought damages, interest on the losses
7
incurred in earnings and other employee benefits, punitive damages, civil
and statutory penalties, and injunctive relief.
D. Defendants’ Special Motion to Strike
Defendants filed a special motion to strike pursuant to Code of Civil
Procedure section 425.16,1 known as an anti-SLAPP motion, against the
complaint’s first eight causes of action. Defendants claimed that these causes
of action arise from protected activity under section 425.16, subdivisions
(e)(l), (e)(2) and (e)(4), because they seek damages and other relief based on
communications between defendants and the CDCR that were made in
connection with an issue under review by the CDCR and in connection with a
public issue and/or an issue of public interest. They argued that causes of
action one through eight in Sanchez’s complaint must be dismissed because
(1) the conduct giving rise to the claims was defendants’ unfavorable report of
Sanchez’s job performance to the CDCR as part of the CDCR’s review of the
facility, the CDCR’s subsequent request that Sanchez be replaced, and
CoreCivic’s termination of Sanchez’s employment in furtherance of that
request, all of which constituted protected speech and/or actions in
furtherance of that speech under the anti-SLAPP statute; and (2) Sanchez
cannot establish a probability of prevailing on the merits of her claims.
Defendants argued that all statements made to and from a
governmental agency such as the CDCR in connection with an official review
are protected by the anti-SLAPP statute. They also argued that Sanchez’s
first eight claims were all based on her allegation that Glaske disparaged her
job performance in statements made to the CDCR as part of their official
review of the facility. According to defendants, Sanchez’s claims were thus
necessarily based on protected speech.
1 All further statutory references are to the Code of Civil Procedure.
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In support of their motion, defendants submitted a short declaration
from Glaske explaining that CoreCivic operates the facility under a contract
with the CDCR, stating that the CDCR and CoreCivic’s other governmental
partners operate in areas of public interest, and setting forth (and attaching
as an exhibit) CoreCivic’s mission statement. Glaske’s declaration did not
contain any information about Sanchez, her employment, or her allegations
against defendants. Specifically, Glaske’s declaration did not include any
facts addressing the merits of Sanchez’s claims of harassment,
discrimination, retaliation, or failure to accommodate.
E. Sanchez’s Opposition
Sanchez argued in opposition that defendants’ motion was frivolous, as
her claims were clearly not based on statements to or from the CDCR. She
contended that defendants were attempting to hide their misconduct behind
a single meeting between Glaske and the CDCR that was briefly referenced
in the complaint. Defendants’ wrongful actions toward Sanchez, she argued,
were not “inextricably connected” to any protected speech by defendants
and/or the CDCR and in fact were wholly unrelated to the CDCR.
Instead, Sanchez argued, the basis of her complaint is that defendants
terminated her due to her complaints about defendants’ illegal, unethical,
and unsafe practices (including her complaints that CoreCivic deliberately
did not hire additional counselors to maximize its profits, in violation of its
contract with the CDCR), her impending medical leave, her ongoing medical
condition, her refusal to ignore another employee’s violation of CoreCivic’s
Code of Ethics and document retention policy by destroying evidence.
Sanchez argued that none of those allegations constituted protected speech or
petitioning activity under the anti-SLAPP statute and the trial court should
therefore deny defendants’ motion. Even if her claims were based on
9
protected activity, she argued, the lengthy declaration she submitted in
support of her opposition to the anti-SLAPP motion constituted sufficient
evidence to demonstrate minimal merit on each of the challenged claims.
Sanchez’s declaration contained many of the facts outlined in her
complaint but also provided additional details supporting her claims, as set
forth below.
1. Sanchez’s Duties and Performance History
Sanchez explained that as facility director, her duties were wide-
ranging. Per CoreCivic policy, though, many decisions and policies regarding
the facility were made by Glaske and other senior management personnel.
Throughout her career at CoreCivic, Sanchez received outstanding
evaluations and was repeatedly promoted. She was often praised by
CoreCivic and Glaske and received regular raises, bonuses, and stock options.
Her last review prior to her September 2021 termination was in February
2021. The review was conducted by Glaske, who gave Sanchez the highest
possible overall competency rating of “exceeds expectations.”
2. The CDCR’s Visit to the Facility
Sanchez also detailed in her declaration how, during the CDCR’s May
2021 visit to the facility, CDCR personnel complained about CoreCivic’s
failure to maintain staffing levels and lack of programming. At the time, the
facility only had two counselors but a population of over sixty participants.
Per CoreCivic’s contract with the CDCR, the counselor ratio should have been
1 to 18, but the facility had been significantly short staffed since the
beginning of the year. According to Sanchez, CoreCivic deliberately did not
hire additional counselors so it could maximize its profits, in violation of its
contract with the CDCR. The CDCR also complained about the amount and
quality of food served to inmates and CoreCivic’s failure to test for fentanyl.
10
These complaints were identical to complaints Sanchez had repeatedly lodged
with defendants.
That same day, Sanchez discussed the CDCR’s complaints with Glaske,
reminding her that she had previously complained of these issues, and again
inquired why CoreCivic continued to accept inmates despite inadequate
staffing. In response, Glaske repeated her prior response that Sanchez
should not worry about it. As was the case when Sanchez had previously
complained to Glaske, Glaske appeared annoyed with Sanchez’s continued
persistence in complaining about these issues.
CDCR employee Jessica F. repeatedly assured Sanchez that their
criticisms were not directed toward her, but rather toward CoreCivic. Jessica
stated that the CDCR was unhappy with CoreCivic but happy with Sanchez’s
performance.
3. Note Incident
Sanchez’s declaration also provided further details about the incident
with one of CoreCivic’s accountants, Roberta M., that took place a couple of
weeks before Sanchez’s termination. After Roberta ripped up the
handwritten note containing comments from a CDCR employee complaining
about CoreCivic’s waste of money, fraud, and lack of programming and
counselors, Sanchez was alarmed and reported the incident to Glaske.
Sanchez was required to do so pursuant to CoreCivic’s Code of Ethics (Code),
which states that employees must report possible violations of the Code and
prohibits retaliation as a result of making a report. Roberta’s destruction of
the note was a clear violation of CoreCivic’s document retention policy
outlined in the Code, which Sanchez declared reads as follows: “No CoreCivic
employee is ever authorized to destroy or alter any company record based on
a concern that the record could be harmful to CoreCivic in a potential
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investigation, audit or litigation. Employees must comply with CoreCivic’s
records retention policy and procedures, as well as any ‘hold’ notices issued
under the policy.” The Code states that employees may be terminated for
violating the Code.
When Sanchez reported the note and its destruction to Glaske, Glaske
resisted Sanchez’s requests that the note and Roberta’s destruction of it be
reported to upper management at CoreCivic. Glaske informed Sanchez that,
even though it appeared that CoreCivic was being accused of fraud, and that
a CoreCivic employee had destroyed evidence relative to that accusation, she
had no intention of reporting the incident to upper management. Sanchez
told Glaske that her approach was inappropriate and violated CoreCivic
policy. She further advised Glaske that she intended to retrieve the shredded
note and insisted that Glaske share it with her direct supervisor. After
Sanchez eventually found the note in Roberta’s trash and the note was taped
back together, she immediately emailed the recovered note to Glaske.
4. Sanchez’s Final Meetings with Glaske and Termination
During Sanchez’s meeting with Glaske two days prior to Sanchez’s
termination, Glaske stated that the meeting with CDCR personnel went well
for the most part, but they spoke about the need to increase programming
and the lack of counselors. At no time did Glaske indicate that the CDCR
had concerns with Sanchez’s performance.
As Sanchez explained in her complaint, CoreCivic terminated her two
business days before her FMLA/CFRA leave was to begin. In her declaration,
Sanchez added that, during that meeting with Glaske and Human Resources
Director Steve S., Sanchez specifically requested that she be allowed to file a
grievance regarding her termination pursuant to CoreCivic policy. That
policy, outlined in the Code, allows employees who believe they have been
12
unfairly disciplined to file an employee grievance with CoreCivic. Sanchez
also requested that she be considered for a transfer to one of the numerous
other CoreCivic facilities given that she was eligible for a transfer pursuant
to CoreCivic policy. Glaske and Steve rejected both requests.
Sanchez stated in her declaration that, as a result of defendants’
actions, she has suffered and continues to suffer substantial losses in
earnings, bonuses, and other employment benefits, as well as anxiety,
humiliation, mental anguish, embarrassment, worry, sleeplessness, and
mental and emotional distress. She also attached copies of CoreCivic’s Code
of Ethics and proposed severance agreement to her declaration.
F. Defendants’ Reply
Defendants’ reply in support of their anti-SLAPP motion argued that
Sanchez sought to ignore her claims as pleaded and instead impermissibly
recast “the heart of her complaint” as a single meeting between Glaske and
the CDCR. Defendants argued that Sanchez admitted in her complaint that
each of her first eight causes of action were based at least in part on Glaske’s
statements to the CDCR as part of its official review of the facility, and the
CDCR’s statements that they had lost faith in Sanchez’s ability to
competently perform her job. They further argued that Sanchez’s allegation
regarding Glaske’s statements to the CDCR supplied an element of each of
Sanchez’s claims. Finally, they claimed that Sanchez failed to show minimal
merit and her first eight claims must therefore be stricken.
G. Trial Court Ruling
The trial court held a hearing on defendants’ anti-SLAPP motion and,
shortly after, adopted its tentative ruling denying the motion. The court
stated that it did “not find that the gravamen of plaintiff’s action is within
13
the purview of CCP 425.16” and that plaintiff’s request for attorneys’ fees
pursuant to the statute could be decided by a separately noticed motion.
Defendants timely appealed the order.
DISCUSSION
I
A. Governing Law and Standard of Review
California’s anti-SLAPP statute authorizes a special motion to strike
any claim “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 . . . unless the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the claim.” (§ 425.16,
subd. (b)(1).) Subdivision (e) of section 425.16 sets forth four categories of
protected activity: “(1) any written or oral statement or writing made before
a legislative, executive, or judicial proceeding, or any other official proceeding
authorized by law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law,
(3) any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest, or
(4) any other conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection with a
public issue or an issue of public interest.” (§ 425.16, subd. (e)(1)–(4).)
Our review of an order granting or denying an anti-SLAPP motion is de
novo. (Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1067 (Park).) We first determine whether the defendant has
established that the challenged claim arises from activity protected under
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section 425.16, meaning that the activity itself forms the basis of the claim.
(Ibid.; id. at p. 1062; Balla v. Hall (2021) 59 Cal.App.5th 652, 671 (Balla).)
At this first step, courts analyze “each act or set of acts supplying a basis for
relief, of which there may be several in a single pleaded cause of action—to
determine whether the acts are protected[.]” (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1010 (Bonni).)
“ ‘If the defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a probability of
success.’ ” (Balla, supra, 59 Cal.App. 5th at p. 671, citing Baral v. Schnitt
(2016) 1 Cal.5th 376, 384 (Baral).) Our review at this second step is similar
to our review of a ruling on a summary judgment motion. (Baral, at p. 384.)
We accept the plaintiff’s evidence as true and consider the defendant’s
evidence only to determine whether it defeats the challenged claim as a
matter of law. (Id. at p. 385.) Claims with at least minimal merit may
proceed. (Bonni, supra, 11 Cal.5th at p. 1009.)
B. Analysis
We address as an initial matter defendants’ argument that the trial
court incorrectly applied a gravamen test to Sanchez’s complaint as a whole
rather than analyzing each claim for relief to determine whether the activity
was protected, in contradiction of the Supreme Court’s instruction in Bonni
and Baral. As the Supreme Court explained in Bonni, however, not every
court that labels its approach as a “gravamen” test has erred; some courts
have properly invoked the term “to determine whether particular acts alleged
within the cause of action supply the elements of a claim . . . or instead are
incidental background.” (Bonni, supra, 11 Cal.5th at p. 1012.) The trial
court did not specify in its order in which way it invoked the term
“gravamen,” but we must presume the trial court knew and properly applied
15
the law. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939,
956.) Thus, defendants have failed to demonstrate that the trial court used
the term “gravamen” in a legally impermissible way. And even if the court
did not properly invoke the term in reaching its decision, if the decision is
correct on any theory, we must affirm it regardless of the court’s reasoning.
(See ibid.)
Turning to step one of the anti-SLAPP analysis, defendants contend
that each of Sanchez’s first eight causes of action are based on protected
activity because (a) they rely on the allegation that Glaske made disparaging
statements about Sanchez in a meeting with the CDCR, and (b) all
statements made in connection with official governmental reviews are
entitled to anti-SLAPP protection. Specifically, defendants point to
paragraph 61 of the complaint, which alleges: “Further, during her meeting
with CDCR, Glaske disparaged Plaintiff’s performance in an attempt to
deflect CDCR’s criticism from her own shoddy performance and save her own
job. Glaske’s statements denigrating Plaintiff’s performance were obviously
and demonstrably false. When Glaske made these charges against Plaintiff,
she knew they were false and would torpedo Plaintiff’s career. Glaske’s false
charges were motivated by Glaske’s personal animus toward Plaintiff and
were designed to silence her whistleblowing.”
Sanchez responds that defendants are attempting to use a single
paragraph of her complaint to recast all of her claims as arising from
protected speech or petitioning activities while ignoring the rest of her
allegations that are wholly unrelated to communications to or from the
CDCR. She argues that the allegations in paragraph 61 merely provide
context and supply evidence of Glaske’s retaliatory animus rather than an
essential element or basis for liability.
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Sanchez has the better argument. A claim challenged in an anti-
SLAPP motion “may be struck only if the speech or petitioning activity itself
is the wrong complained of, and not just evidence of liability or a step leading
to some different act for which liability is asserted”—an important
distinction. (Park, supra, 2 Cal.5th at pp. 1060, 1064.) The question is
whether the protected activity supplies an element of the claim at issue.
(Id. at p. 1063.) In reviewing the defendants’ anti-SLAPP motion, therefore,
we must consider the elements of each challenged claim, the actions alleged
to supply those elements (and thus form the basis for liability), and whether
those actions are protected. (Ibid.; Bonni, supra, 11 Cal.5th at p. 1015.)
“Allegations of protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the anti-SLAPP
statute.” (Baral, supra, 1 Cal.5th at p. 394; see also Oakland Bulk and
Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, 759
[directing trial court to deny anti-SLAPP motion on the merits where the
incorporated allegations of protected activity merely provided context and
were not the basis for plaintiffs’ claims for recovery].)
Properly construed in light of the facts Sanchez has alleged in her
complaint and declaration, we conclude that each of her claims is based on
unprotected activity. Any allegations of protected activity in paragraph 61 of
her complaint merely provide context and therefore cannot be stricken.
1. Sanchez’s Discrimination and Retaliation Claims
Defendants argue that Sanchez’s first, second, fifth, sixth, and seventh
causes of action are based on protected speech because each requires proof of
an adverse employment action as one of its elements. According to
defendants, the complaint alleges that Glaske’s statements to the CDCR
evaluating Sanchez’s job performance constituted an adverse employment
17
action taken to retaliate against Sanchez, thus supplying an essential
element of her first, fifth, and seventh causes of action for retaliation in
violation of Labor Code section 1102.5, employment discrimination in
violation of FEHA, and retaliation in violation of FEHA, respectively. They
further argue that Glaske’s speech to the CDCR and CoreCivic’s act in
terminating Sanchez at the CDCR’s direction was an action in furtherance of
protected speech that supplied the adverse employment action that is an
essential element of Sanchez’s second cause of action (wrongful termination
and retaliation in violation of public policy) and sixth cause of action (failure
to accommodate in violation of FEHA) as well.
We are not persuaded. The Supreme Court recently addressed the
application of section 425.16 to employment discrimination and retaliation
claims and provided useful guidance applicable here: “The anti-SLAPP
statute does not apply simply because an employer protests that its personnel
decisions followed, or were communicated through, speech or petitioning
activity. . . . [T]o carry its burden at the first step, the defendant in a
discrimination suit must show that the complained-of adverse action, in and
of itself, is an act in furtherance of its speech or petitioning rights. Cases
that fit that description are the exception, not the rule.” (Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 890.) This case is not an exception,
and the fact that CoreCivic’s decision to terminate Sanchez may have
followed or been communicated through speech or petitioning activity does
not compel the conclusion that the termination itself is a protected act.
It is also plain from Sanchez’s complaint and declaration that her
claims do not arise from Glaske’s speech. Sanchez’s first, second, fifth, sixth,
and seventh causes of action are based on specific allegations that CoreCivic
wrongfully terminated her and retaliated against her in response to her
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reports of illegal, unethical, and unsafe conduct, and discriminated against
her, failed to accommodate her, and retaliated against her in response to her
request for medical leave. None of the specific allegations under these causes
of action refer to or rely on any statements Glaske may or may not have made
to the CDCR.
None of Sanchez’s general allegations reference Glaske’s statements
about Sanchez to the CDCR, either, with the exception of paragraph 61.
Defendants’ assertion that Sanchez pleads in paragraph 61 that she was
terminated at the direction of the CDCR, and therefore in furtherance of the
CDCR’s speech, is factually wrong. Nowhere in her complaint does Sanchez
allege that the CDCR directed defendants to fire her in response to Glaske’s
statements. Instead, she alleges that defendants wrongfully terminated her
in response to her complaints about defendants’ unethical practices and her
request for medical leave, arguing that defendants’ claim that they were
terminating her because the CDCR desired a change of leadership at the
facility was pretext.
Specifically, she details in her general allegations that (1) Sanchez
reported to Glaske critical staff shortages and lack of programming at the
facility, which CoreCivic failed to remedy, (2) the CDCR’s complaints about
the facility mirrored Sanchez’s prior complaints, (3) Sanchez reported conduct
by another CoreCivic employee who attempted to destroy a business record
containing allegations of fraud asserted by a CDCR employee, (4) Glaske
attempted to thwart Sanchez from taking medical leave, and (5) defendants
terminated Sanchez just before her medical leave was to begin, after 27 years
of service to CoreCivic, and refused her grievance and transfer requests
despite claiming they were pleased with Sanchez’s performance.
19
Nor does Sanchez reference any of Glaske’s statements about her from
that meeting in the declaration she submitted in support of her opposition to
defendants’ anti-SLAPP motion. Instead, she provides additional evidence
supporting her claim that defendants terminated Sanchez because of her
whistleblowing and request for medical leave and not because they were
directed to do so by the CDCR. For example, Sanchez states that CDCR
employee Jessica F. repeatedly assured her that the CDCR’s criticisms were
not directed toward her, but rather toward CoreCivic, and the CDCR was
happy with Sanchez’s performance. She also describes how Glaske became
annoyed with Sanchez when she persisted in complaining about issues at the
facility and how defendants rejected Sanchez’s request that she be considered
for a transfer to one of the numerous other CoreCivic facilities even though
she was eligible and defendants told her they were pleased with her
performance.2
Rather than supplying an essential element of Sanchez’s discrimination
and retaliation claims, the allegations of Glaske’s statements in paragraph 61
merely provide evidence of Glaske’s requisite retaliatory and discriminatory
animus. As the Supreme Court has explained, courts analyzing lawsuits
alleging discriminatory actions are appropriately careful “not to treat such
claims as arising from protected activity simply because the discriminatory
animus might have been evidenced by one or more communications by a
defendant.” (Park, supra, 2 Cal.5th at p. 1065.)
In Park, the plaintiff filed discrimination and related claims after being
denied tenure. (Park, supra, 2 Cal.5th at p. 1061.) His employer filed an
2 Defendants, on the other hand, failed to submit any evidence to the
trial court in support of their argument that Sanchez’s claims were based on
protected activity. Glaske’s declaration provided only very basic information
about CoreCivic. It did not mention Sanchez or her claims.
20
anti-SLAPP motion, claiming its tenure decision and related communications
were protected activity. (Ibid.) The Supreme Court rejected the employer’s
argument, holding that the elements of the plaintiff’s discrimination claim
“depend not on the grievance proceeding, any statements, or any specific
evaluations of him in the tenure process, but only on the denial of tenure
itself and whether the motive for that action was impermissible.” (Id. at
p. 1068.) The Court found that the alleged prejudicial comments of the dean
merely supplied evidence of animus, not elements of the claim. (Ibid.)
Likewise here—the allegations in paragraph 61 of Sanchez’s complaint
merely supply context and evidence of Glaske’s animus.
Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611(Martin) is also instructive. The plaintiff in Martin sued his employer, a
government agency, for discrimination and retaliation, resulting in his
constructive discharge, as well as defamation. (Id. at pp. 624–625.) The
employer filed an anti-SLAPP motion, contending that the discrimination
and retaliation claims were based on negative evaluations of the plaintiff’s
performance at a board meeting, which constituted protected activity. (Ibid.)
The Court of Appeal rejected the employer’s argument. (Ibid.; see also id. at
p. 625 [“Indeed, the board meeting is mentioned only minimally in plaintiff’s
pleadings. . . .”].) As the Supreme Court in Park noted, any liability for the
defendants in Martin would “arise from the constructive discharge of the
plaintiff for illegal reasons, not the defendants’ evaluations of the plaintiff at
the agency’s board meeting.” (Park, supra, 2 Cal.5th at p. 1066; see also Area
51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 594–595
[affirming order denying anti-SLAPP motion and finding that the
communications that led to and followed the alleged injury-producing conduct
were merely incidental to the asserted claims]; San Ramon Valley Fire
21
Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004)
125 Cal.App.4th 343, 354 [distinguishing for anti-SLAPP purposes between
county retirement board’s decision and the board’s deliberations and vote
that led to the decision, concluding that the latter were not protected].)
Again, the same is true here. Sanchez’s complaint, declaration, and
argument on appeal make clear that it is defendants’ harassment and
termination of Sanchez, not Glaske’s statements at the meeting with the
CDCR, that creates potential liability for defendants. We therefore conclude
that Sanchez’s first, second, fifth, sixth, and seventh causes of action are not
based on protected activity.
2. Sanchez’s Harassment and Emotional Distress Claims
Defendants also argue that Sanchez’s fourth and eighth causes of
action, for intentional infliction of emotional distress (IIED) and harassment
based on her medical condition and election to take medical leave in violation
of FEHA, are “indisputably entirely based on protected speech to the CDCR,
namely Glaske’s alleged communication of Respondent’s poor job performance
in an official CDCR meeting.” They assert that this is the only fact in the
complaint that could support a harassment claim against Glaske and
CoreCivic and a claim for IIED against Glaske.
Contrary to defendants’ assertion, Sanchez alleged many other facts in
support of her harassment and IIED claims. We again conclude that the
allegations in paragraph 61 merely provided context.
Section 12940, subdivision (j)(1), of FEHA makes it unlawful for an
employer to harass an employee because of the employee’s medical condition.
(Gov. Code, § 12940, subd. (j)(1).) To establish a cause of action for
harassment under FEHA, the employee must show that the harassing
conduct was more than annoying or merely offensive—it must be severe or
22
pervasive. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 940.)
Similarly, a plaintiff asserting an IIED claim must prove that the defendant
engaged in extreme and outrageous conduct that causes extreme or severe
emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)
The complaint explicitly states that Sanchez’s claim for harassment
against defendants is based on their failure to take corrective action to
address discriminatory behavior and prevent harassment against her
because of her medical condition and election to take medical leave, in
violation of FEHA. In support of this claim, Sanchez alleges that she advised
Glaske she had been having an extremely hard time dealing with her
mother’s recent passing, had missed numerous individual and group grief
counseling sessions due to work, and was unable to take her prescribed
medication—also due to work. According to Sanchez, Glaske knew all about
Sanchez’s health issues but still was not receptive to her request to take
statutorily provided leave; instead, Glaske attempted to prevent her from
taking leave, including by repeatedly insisting that Sanchez was not eligible
for such leave despite having already confirmed her eligibility with
CoreCivic’s human resources department. Sanchez argues that these same
facts also support her IIED claim.
Again, we find that the allegations in paragraph 61 merely provide
context for Sanchez’s harassment and IIED claims, as they demonstrate a
“discriminatory animus” on Glaske’s part.3 (Park, supra, 2 Cal.5th at
3 Indeed, the allegations of paragraph 61 could not plausibly satisfy the
element of extreme and outrageous conduct for an IIED claim. (Hughes v.
Pair (2009) 46 Cal.4th 1035, 1050–1051 [IIED requires conduct so extreme as
to exceed all bounds of that usually tolerated in a civilized society].)
Although we do not decide the issue, the only allegations that might support
such a claim are those involving Glaske’s knowing retaliation against
Sanchez for taking authorized medical leave to deal with her deep grief over
23
p. 1065.) Courts have consistently declined to treat claims of discrimination
and retaliation as arising from protected activity simply because such
discriminatory animus might have been evidenced by communications by a
defendant. (Ibid.) And as Sanchez has confirmed, she does not seek relief
based on anything Glaske did or did not say about her to the CDCR. There is
no evidence showing otherwise—indeed, Sanchez did not even reference
Glaske’s comments to the CDCR in her declaration below.
We express no opinion as to whether the above facts sufficiently state a
claim for harassment or IIED, or whether Sanchez is likely to prevail on
these claims. The only question before us at this stage is whether any
protected activity identified by defendants in paragraph 61 forms the basis
for potential liability. We conclude that it does not.
3. Sanchez’s Unfair Business Practices Claim
Finally, defendants argue that Sanchez’s third cause of action, unfair
business practices in violation of Business and Professions Code section
17200 et seq., or the unfair competition law (UCL), is based on protected
speech and petitioning activity because the only statements described in the
complaint as “false” or “fraudulent” are Glaske’s statements to the CDCR and
CoreCivic’s severance offer. We again disagree.
First, defendants fail to explain how unknown statements from Glaske
to the CDCR could form the basis of an unfair business practices claim.
Second, we do not agree with defendants that Bonni stands for the
proposition that a severance offer made during a termination meeting can be
fairly categorized as part of “settlement negotiations” that constitute
her mother’s death. (See McCoy v. Pacific Maritime Assn. (2013) 216
Cal.App.4th 283, 295 [holding that retaliation “does not necessarily rise to the
‘extreme and outrageous’ standard required” for IIED (italics added)].)
24
protected petitioning activity. (See Bonni, supra, 11 Cal.5th at p. 1025.) On
this basis alone, defendants have not met their burden of establishing that
Sanchez’s UCL claim arises from protected activity.
In any event, a UCL violation does not require false or fraudulent
conduct. The UCL prohibits all types of unfair competition, including
unlawful, unfair, and fraudulent business acts. (Bus. & Prof. Code, § 17200
et seq.) It “covers a wide range of conduct” and “ ‘borrows’ violations from
other laws by making them independently actionable as unfair competitive
practices.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
1134, 1143.) Courts have also held that “ ‘[a]n employer’s business practices
concerning its employee are within the scope of [the UCL].’ ” (Davis v.
Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1326, fn. 17.) Sanchez
alleges in her complaint that defendants violated several other laws,
including FEHA, Labor Code sections 1102.5 and 1198.5, and Civil Code
section 3344—none of which are based on protected activity. We therefore
conclude that defendants have similarly failed to demonstrate that Sanchez’s
UCL claim is based on protected activity.
Because we determine that Sanchez does not seek relief based on any
protected activity identified in paragraph 61 of the complaint, we need not
reach the question of whether communications to and from the CDCR are in
fact protected under section 425.16, subdivision (e), or whether Sanchez’s
claims have minimal merit. We note, however, that even if we were to strike
paragraph 61, it would not result in any of Sanchez’s claims being stricken,
as she has sufficiently alleged and substantiated in her declaration other
unprotected conduct supporting each cause of action.
25
II
Sanchez asks us to award her attorneys’ fees and costs on appeal,
arguing that defendants’ anti-SLAPP motion was frivolous and brought solely
to cause unnecessary delay. Defendants contend that because their anti-
SLAPP motion should have been granted, it is they who are entitled to an
award of fees and costs. We agree with Sanchez that defendants’ motion and
this appeal were frivolous.
Section 425.16, subdivision (c)(1), provides that “[i]f the court finds that
a special motion to strike is frivolous or is solely intended to cause
unnecessary delay, the court shall award costs and reasonable attorney’s fees
to a plaintiff prevailing on the motion. . . .” In this context, frivolous “means
that any reasonable attorney would agree the motion was totally devoid of
merit.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th
435, 450.) Appellate challenges to an anti-SLAPP motion are also subject to
an award of fees and costs, in an amount to be determined by the trial court
after the appeal is resolved. (Christian Research Institute v. Alnor (2008) 165
Cal.App.4th 1315, 1320.)
Defendants contend that Sanchez “in her own words made protected
conduct the cornerstone of her complaint.” To the contrary—it is defendants
who tried to do so, by repeatedly and unreasonably attempting to distort a
single paragraph from Sanchez’s 127-paragraph complaint and turn it into
the basis of eight of her ten claims. Defendants also consistently
misrepresented the actual content of Sanchez’s complaint, both in the trial
court and in this court. Further, they failed to submit any evidence in
support of their argument that Sanchez’s claims arose from protected
activity, either when they filed their motion or in response to the detailed
declaration Sanchez submitted in opposition. Without any supporting
26
evidence, defendants tried to manufacture a SLAPP theory by repeatedly
asserting that they fired Sanchez at the request of the CDCR and claiming
that the termination was therefore protected conduct in furtherance of the
CDCR’s speech—even going so far as to state that Sanchez “does not dispute
that her termination came at the direction of the CDCR . . . .” But Sanchez
clearly does dispute this claim. In fact, the only evidence in the record on this
point is Sanchez’s evidence suggesting that this was merely a pretext for her
termination. Glaske easily could have stated in her declaration that the
CDCR requested Sanchez’s termination, but her declaration is conspicuously
silent on the issue. And defendants submitted no other evidence to support
their assertion that they fired Sanchez at CDCR’s request.
“Both the Legislature and the Supreme Court have acknowledged the
ironic unintended consequence that anti-SLAPP procedures, enacted to curb
abusive litigation, are also prone to abuse.” (Olsen v. Harbison (2005) 134
Cal.App.4th 278, 283.) By bringing a frivolous anti-SLAPP motion, then
appealing its denial, a defendant forces the plaintiff to incur unnecessary fees
and a long delay during the mandatory stay of proceedings pending appeal.
(Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191 [appeal
from denial of anti-SLAPP motion automatically stays trial court
proceedings]; Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th
125, 128 [noting that “appeal by a defendant whose anti-SLAPP motion failed
below . . . will result in inordinate delay of the plaintiff’s case and cause him
to incur more unnecessary attorney fees”].) Courts must therefore be vigilant
to protect against abuse of the statute. Specifically, courts must award fees
when the defendant brings an objectively frivolous anti-SLAPP motion based
on tangential or purely incidental allegations of arguably protected activity
that are not the actual basis for the claims asserted. (See Workman v.
27
Colichman (2019) 33 Cal.App.5th 1039, 1056–1058 [award of reasonable
attorneys’ fees and costs for frivolous anti-SLAPP motion is mandatory].)
We believe no reasonable attorney could have concluded that this anti-
SLAPP motion was well taken. This is particularly so after the trial court
had already determined that defendants’ motion was without merit and thus
awarded Sanchez her fees below. After being put on notice by the trial court
that their motion was frivolous, defendants proceeded with this appeal at
their own peril. Accordingly, Sanchez may also recover reasonable fees for
this appeal.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Sanchez shall
recover her costs and fees on appeal. The matter is remanded to the trial
court for a determination of the amount of recoverable costs and fees on
appeal.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
28