Verceles v. Los Angeles Unified School Dist. CA2/7

Filed 4/19/21 Verceles v. Los Angeles Unified School Dist. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JUNNIE VERCELES, B303182
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV09932)
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and
Respondent.
APPEAL from orders and a judgment of the Superior Court
of Los Angeles County, Lia Martin, Judge. Reversed and
remanded.
Wyatt Law and Andrew M. Wyatt for Plaintiff and
Appellant.
Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall;
and Anthony J. Bejarano, Assistant General Counsel,
Los Angeles Unified School District, for Defendant and
Respondent.
Junnie Verceles appeals the order granting the Los Angeles
Unified School District’s special motion to strike his complaint for
discrimination and retaliation in violation of California’s Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900
et seq.). Verceles contends the trial court erred in finding his
causes of action arose from protected activity within the meaning
of Code of Civil Procedure section 425.16, subdivision (e),1 and he
had failed to establish a probability of prevailing on the merits of
his claims. Verceles also appeals the court’s award of attorney
fees to the District. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Verceles’s Complaint
Verceles, who is Filipino and was 46 years old when his
complaint was filed in March 2019, had been employed by the
District as a teacher since 1998. According to his complaint, on
December 1, 2015 he was “removed from his school and placed on
reassignment with the local district office . . . due to an allegation
of misconduct.” Verceles was not told the specifics of the
allegation, only that he had been accused of misconduct involving
a student.2 Verceles remained on paid suspension, which he calls
“teacher jail,” for more than three years, during which time he
was told to stay home and report his hours to the District. He
1 Statutory references are to this code unless otherwise
stated.
2 Verceles ultimately learned the accusation was that he had
grabbed a student by the shirt, shoved him against a wall, threw
the student’s backpack at him while shouting, “Get the fuck out,”
and pushed the student out of the classroom.
2
was not allowed to teach or pursue continuing education or
professional development.
In November 2016, while the District’s investigation of his
alleged misconduct was ongoing, Verceles filed a discrimination
complaint with the California Department of Fair Employment
and Housing (DFEH). The DFEH case was closed on March 7,
2017.
On March 13, 2018 the District’s Board of Education voted
to terminate Verceles’s employment. Verceles alleges the
District’s investigation preceding his termination was “neither
prompt nor thorough. The investigator interviewed only
8 students out of a class of over 30. Had the investigator done a
proper investigation, the truth would have been revealed that one
of the students was pressuring others to lie about what
happened.”
Verceles alleges three causes of action for violation of
FEHA: age discrimination, race and national origin
discrimination and retaliation. The first cause of action, age
discrimination, is based on disparate impact. Verceles alleges the
District “has a continuing policy, pattern and practice of age
discrimination against credentialed employees over the age of 40
with respect to performance evaluations, pay, promotions, and
other terms and conditions of employment. [The District] has
implemented these policies and practices despite knowing that
they have a longstanding disparate impact on teachers over the
age of 40. [The District] also retaliates against teachers over the
age of 40 who complain about this discrimination. [¶] . . . [The
District’s] reliance on the illegitimate ‘teacher jail’ to remove
teachers, and in particular, Plaintiff, from their teaching
3
assignments and have them sit at home, has an adverse impact
on employees over the age of 40 . . . .”
The second cause of action, race and national origin
discrimination, is also based on a disparate impact theory. The
allegations repeated, almost verbatim, the allegations in the
first cause of action, but stated the disparate impact of the
District’s policies was based on race and national origin.
The third cause of action, retaliation, alleged the District
had terminated Verceles’s employment as retaliation for his
November 2016 complaint to DFEH.
2. The District’s Special Motion To Strike
On June 4, 2019 the District moved to strike the complaint
pursuant to section 425.16. The District argued each cause of
action arose from acts in furtherance of its rights of petition and
free speech within the meaning of section 425.16, specifically, the
investigation into teacher misconduct. The District also argued
Verceles could not establish a probability of prevailing on his
claims.
In his opposition Verceles argued the wrongful acts upon
which his complaint was based were discrimination and
retaliation, which are not protected activity. The District’s
investigation was evidence of that discrimination and retaliation
but not the gravamen of the complaint. In support of the merits
of his claims, Verceles submitted the declaration of a financial
analyst who had reviewed the District’s data regarding teachers
assigned to “teacher jail.” The analyst found “a statistically
significant bias against teachers aged 46 and over, when
compared against the general teacher population in California”
during an unspecified time period. While the graphs and tables
attached to the analyst’s declaration referred to the race and
4
national origin statistics of teachers in the District and the state,
the declaration itself did not contain any conclusions as to those
statistics.
After hearing argument on the special motion to strike on
June 26, 2019, the court granted the motion, finding Verceles’s
cause of action arose from “the investigation process which
includes plaintiff’s removal from the classroom . . . . The acts
alleged to constitute the discrimination and retaliation are all
part of the proceeding, from the initial investigation to plaintiff’s
termination.” The court also found Verceles had failed to
establish a probability of prevailing on his claims. First, the
disparate impact claims were not supported by the statistical
data provided because “[t]here is no evidence that the age and
racial make-up of teachers statewide is reflective of the teachers
in [the District].” Therefore, comparison between the two data
sets is irrelevant. Second, the court found Verceles failed to state
a timeline supporting any inference of a causal connection
between his filing of a grievance and the alleged retaliatory act.
On October 14, 2019 the District moved for an award of
attorney fees pursuant to section 425.16, subdivision (c)(1), which
Verceles opposed. After a hearing on the motion at which neither
Verceles nor his counsel appeared, the court granted the motion
for fees, awarding the District $44,800, the full amount
requested. Judgment was entered against Verceles on
November 21, 2019.
Verceles filed a notice of appeal on December 19, 2019
5
DISCUSSION
1. Verceles’s Appeal of the Section 425.16 Order Is Properly
Before Us
The District contends Verceles’s appeal of the order
granting the section 425.16 motion is untimely and, even if
timely, the notice of appeal does not adequately identify that
order as being appealed.
As the District correctly points out, an order granting a
special motion to strike is immediately appealable. (See
§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Pursuant to California
Rules of Court, rule 8.104(a), Verceles had either 60 days from
the date the superior court clerk or the District served him with a
notice of entry or the file-stamped copy of the order or 180 days
from the entry of the order to appeal the order. (See Cal. Rules of
Court, rule 8.104(a).) Verceles’s appeal was filed 177 days after
entry of the order granting the special motion to strike.
Relying on the 60-day deadline, the District argues
Verceles’s appeal is untimely and we are without jurisdiction to
hear it. However, the District has submitted no evidence a notice
of entry or file-stamped order was served on Verceles.
Accordingly, Verceles’s notice of appeal, filed within 180 days of
the entry of the order granting the special motion to strike, is
timely.3
In the alternative the District argues Verceles’s notice of
appeal from the judgment does not encompass an appeal of the
order granting the special motion. In the section of the notice
3 We previously denied the District’s motion to dismiss the
portion of Verceles’s appeal that challenges the order granting
the special motion to strike.
6
indicating the type of judgment or order appealed from,
Verceles’s attorney checked the box for “Other” and wrote,
“Judgment of dismissal after an order granting a special motion
to strike complaint (anti-SLAPP) under Code of Civil Procedure
section 425.16; order granting motion for attorney fees under
Code of Civil Procedure section 425.16.”
“[N]otices of appeal are to be liberally construed so as to
protect the right of appeal if it is reasonably clear what appellant
was trying to appeal from, and where the respondent could not
possibly have been misled or prejudiced.” (Luz v. Lopes (1960)
55 Cal.2d 54, 59; accord, K.J. v. Los Angeles Unified School
District (2020) 8 Cal.5th 875, 882; Cal. Rules of Court,
rule 8.100(a)(2).) Here, by identifying the order granting the
special motion to strike in addition to the order on attorney fees,
the notice of appeal made it reasonably clear Verceles intended to
appeal both orders simultaneously. Further, there is no evidence
the District was misled or prejudiced by the notice of appeal.
2. The Trial Court Erred by Granting the District’s Special
Motion To Strike
a. Section 425.16, the anti-SLAPP statute4
Section 425.16, subdivision (b)(1), provides, “A cause of
action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
4 SLAPP is an acronym for “strategic lawsuit against public
participation.” (City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 413, fn. 2.)
7
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.”
Pursuant to section 425.16, subdivision (e), an “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (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.”
In ruling on a motion under section 425.16, the trial court
engages in a two-step process. “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16. [Citation.] 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.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord,
Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1061 (Park).) “Only a cause of action that
satisfies both prongs of the anti-SLAPP statute—i.e., that arises
from protected speech or petitioning and lacks even minimal
merit—is a SLAPP, subject to being stricken under the statute.”
8
(Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics omitted;
accord, Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th
811, 820.) If the moving party fails to demonstrate that any of
the challenged claims for relief arise from protected activity, the
court properly denies the motion to strike without addressing the
second step (probability of success). (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 80-81; Trilogy at Glen Ivy Maintenance
Assn. v Shea Homes, Inc. (2015) 235 Cal.App.4th 361, 367.)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park, supra,
2 Cal.5th at pp. 1062-1063.) Thus, “[t]he defendant’s first-step
burden is to identify the activity each challenged claim rests on
and demonstrate that that activity is protected by the anti-
SLAPP statute. A ‘claim 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.’” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884 (Wilson); accord, Park, at p. 1060.)
“‘[T]he mere fact that an action [or claim] was filed after
protected activity took place does not mean the action [or claim]
arose from that activity for the purposes of the anti-SLAPP
statute.’” (Park, at pp. 1062-1063; see Rand Resources, LLC v.
City of Carson (2019) 6 Cal.5th 610, 621 [“a claim does not ‘arise
from’ protected activity simply because it was filed after, or
because of, protected activity, or when protected activity merely
provides evidentiary support or context for the claim”].) “To
determine whether a claim arises from protected activity, courts
must ‘consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently
9
form the basis for liability.’” (Wilson, at p. 884; accord, Park, at
p. 1063.)
We review de novo an order granting or denying a special
motion to strike under section 425.16 (Wilson, supra, 7 Cal.5th at
p. 884; Sweetwater Union High School Dist. v. Gilbane Building
Co. (2019) 6 Cal.5th 931, 940; Park, supra, 2 Cal.5th at p. 1067),
considering the parties’ pleadings and affidavits describing the
facts on which liability or defenses are predicated. (§ 425.16,
subd. (b)(2); see Navellier v. Sletten, supra, 29 Cal.4th at p. 89;
see also San Diegans for Open Government v. San Diego State
University Research Foundation (2017) 13 Cal.App.5th 76, 94.)
b. Verceles’s complaint does not arise from the District’s
protected activity
To prove unlawful discrimination based on disparate
impact, Verceles must show “that regardless of motive, a facially
neutral employer practice or policy, bearing no manifest
relationship to job requirements, in fact had a disproportionate
adverse effect on members of the protected class.” (Guz v. Bechtel
National Inc. (2000) 24 Cal.4th 317, 354, fn. 20; accord, Jumaane
v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1404-1405
[disparate impact plaintiff must prove “‘that facially neutral
employment practices adopted without a deliberately
discriminatory motive nevertheless have such significant adverse
effects on protected groups that they are “in operation . . .
functionally equivalent to intentional discrimination”’”].) To
prove unlawful retaliation Verceles must show the District
subjected him to an adverse employment action for impermissible
reasons—namely, because he exercised his right to file a
complaint with the DFEH. (See Wilson, supra, 7 Cal.5th at
p. 885; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,
10
1042 [“in order to establish a prima facie case of retaliation under
the FEHA, a plaintiff must show (1) he or she engaged in a
‘protected activity,’ (2) the employer subjected the employee to an
adverse employment action, and (3) a causal link existed between
the protected activity and the employer’s action”].) Accordingly,
each of Verceles’s causes of action depends on an allegation the
District subjected him to an adverse employment action for an
improper reason. Identifying the particular adverse employment
action or actions at issue defines the relevant conduct for
purposes of a section 425.16 analysis.
The District urges us to define the alleged adverse action
broadly to encompass the entirety of its investigation into
Verceles’s purported misconduct, arguing, “[A]ll alleged adverse
actions here, including the investigation, paid administrative
leave and ‘teacher jail,’ and termination, were inextricably tied to
the investigation, which is the adverse employment action
complained of by Plaintiff in the Complaint.”
The District has not shown Verceles’s causes of action
“arise from” the District’s investigation as a whole. “The
‘elements’ analysis as articulated by the Supreme Court in Park,
supra, 2 Cal.5th at page 1063, and adopted in Wilson, supra,
7 Cal.5th at page 884, does not mean any allegation of protected
activity supporting an element of a cause of action subjects that
cause of action to a challenge under section 425.16.” (C.W. Howe
Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700-701.)
In Park the plaintiff alleged discrimination based on national
origin after his application for tenure was denied. The employer
argued the cause of action “arose from its decision to deny [Park]
tenure and the numerous communications that led up to and
followed that decision.” (Park, at p. 1061.) The Supreme Court
11
rejected the employer’s characterization, cautioning it was
necessary “to respect the distinction between activities that form
the basis for a claim and those that merely lead to the liability-
creating activity or provide evidentiary support for the claim.”
(Id. at p. 1064.) Applying that distinction the Court held Park’s
claim he was denied tenure based on his national origin did not
depend on “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.) While communications made during the tenure review
process or as a result thereof may have supplied evidence of
liability, they “[did] not convert the statements themselves into
the basis for liability.” (Ibid.) As the Wilson Court reiterated, “A
‘claim may be struck only if the speech or petitioning activity
itself is the wrong complained of.” (Wilson, at p. 884; see Park, at
p. 1060.)
As in Park, Verceles’s discrimination and retaliation claims
depend upon the decisions to reassign him and terminate his
employment rather than on any communications made during
the investigation or the investigation as a whole. Verceles has
not alleged the entirety of the investigation was undertaken for
discriminatory or retaliatory reasons. In fact, he has conceded
the District was obligated to conduct an investigation upon
receiving allegations of misconduct. Nor has Verceles alleged he
was harmed by the undertaking of the investigation itself. The
discrimination claims do not allege the District has a practice and
policy of conducting investigations that has a disparate impact on
protected groups; instead, it is the specific practice and policy of
reassigning teachers to “teacher jail” that is alleged to have an
12
adverse impact.5 Likewise, Verceles does not allege the
investigation was retaliatory, nor could he given it had already
begun at the time he filed his DFEH claim. Instead, Verceles
alleges his termination was the retaliatory adverse action.
Having identified the wrongful conduct at issue, the
question is whether that conduct constituted protected activity
within the meaning of section 425.16. The District argues its
investigation was an “official proceeding authorized by law” for
purposes of section 425.16, subdivision (e)(2), and, therefore, all
actions taken during the investigation were protected activity,
including the decisions to reassign Verceles and to terminate his
employment. The District is correct that, in general, an
investigation into a public employee’s conduct is an official
proceeding. (See Hansen v. Department of Corrections &
Rehabilitation (2008) 171 Cal.App.4th 1537, 1544; Miller v. City
of Los Angeles (2008) 169 Cal.App.4th 1373, 1383.) However,
contrary to the District’s contention, the existence of an official
proceeding does not necessarily transform any claim related to
that proceeding into an action within the ambit of section 425.16,
subdivision (e)(2). Such an interpretation ignores the plain
language of the statute, which requires a claim be based on a
5 In addition to arguing the wrongful conduct at issue is the
District’s use of “teacher jail,” Verceles argues his complaint
arises from the District’s failure to promptly and thoroughly
investigate the misconduct accusations. While the complaint
does include this allegation, it does not allege the District had a
practice or policy of failing to investigate in a timely and
thorough manner, nor does it allege any such practice
disproportionately affected a protected group. Accordingly, those
allegations cannot form the basis for Verceles’s disparate impact
claims.
13
written or oral statement made in connection with the
proceeding.
Again, Park is illustrative. In Park the employer made an
argument similar to the one the District makes here—“its tenure
decision and the communications that led up to it are intertwined
and inseparable.” (Park, supra, 2 Cal.5th at p. 1069.) Thus, the
employer argued, even if the decision to deny tenure did not
constitute an oral or written statement, it must still be
considered protected activity because it was “inextricably
intertwined” with the communications that were part of the
official proceeding. (Id. at p. 1070.) The Supreme Court
disagreed and rejected the argument that “every aspect of those
[official] proceedings, including the decision to impose discipline,
is protected activity for anti-SLAPP purposes.” (Id. at pp. 1069,
1070 [rejecting “proposition that a suit alleging an entity has
made a discriminatory decision necessarily also arises from any
statements by individuals that may precede that decision, or from
the subsequent communication of the decision that may follow”].)
Instead, as discussed, the Court held section 425.16 protected the
speech and petitioning activity that led up to or contributed to a
government entity’s decision but did not necessarily protect “the
ultimate decision itself.” (Park, at p. 1071.)
The District’s position finds some support in Jeffra v.
California State Lottery (2019) 39 Cal.App.5th 471. In Jeffra the
plaintiff sued his public employer for retaliation after he had
been investigated and placed on administrative leave. Unlike the
allegations in this case, the Jeffra plaintiff argued the
investigation had been initiated for an improper purpose—
retaliation for his whistleblower complaint. Based on those
allegations, our colleagues in Division Eight held the adverse
14
employment action was the investigation itself, which was
protected activity within the meaning of section 425.16,
subdivision (e)(2). (Jeffra, at pp. 482-483.) However, the court
did not identify any written or oral statement made in connection
with the official proceeding that formed the basis of plaintiff’s
claim. To the extent Jeffra intended to hold the investigation
itself was protected activity, its analysis conflicts with that in
Park; and we decline to follow it. (See Park, supra, 2 Cal.5th at
pp. 1069-1071; see also Laker v. Board of Trustees of California
State University (2019) 32 Cal.App.5th 745, 773 [university’s
investigations of plaintiff were not protected conduct where
speech was not the basis of the claim; “[n]or did Park suggest
that all aspects of internal investigations arise out of protected
[speech or] ‘petitioning activity’ for the purpose of the anti-
SLAPP statute”].)
The District’s reliance on Okorie v. Los Angeles Unified
School Dist. (2017) 14 Cal.App.5th 574 is similarly unpersuasive.
In Okorie the plaintiff, a teacher with the District, alleged causes
of action for discrimination, retaliation and harassment based on
a variety of conduct, including statements made by the school’s
principal, a notice sent to the credentialing commission and
reassignment to “teacher jail.” The court distinguished the case
from Park, stating Park’s complaint was based on the single act
of denying him tenure, whereas Okorie’s complaint was based
“collectively on a handful of decisions . . . and a wide array of
allegedly injury-causing statements and communicative conduct
by Defendants.” (Okorie, at p. 593.) The court held the
statements were protected within the meaning of section 425.16
because they were made in connection with an official
investigation. However, far from standing for the proposition
15
that any claim by “a plaintiff attacking [the District’s] internal
process for dealing with allegations of abuse” is subject to a
special motion to strike under section 425.16, as the District
suggests, the Okorie court specifically explained the “removal of
Okorie from his classroom to his home [and] reassignment of
Okorie from his home to ESC, the so-called teacher’s jail” were
“arguably unprotected decisions.” (Okorie, at p. 593.)
In the absence of any oral or written statements from
which Verceles’s claims arise, the District’s decisions to place
Verceles on leave and terminate his employment are not
protected activity within the meaning of section 425.16,
subdivision (e)(2), even if those decisions were made in
conjunction with an official investigation. (See Park, supra,
2 Cal.5th at pp. 1069-1071; Laker v. Board of Trustees of
California State University, supra, 32 Cal.App.5th at p. 773.)
The District alternatively argues the adverse employment
actions taken against Verceles were protected activity because
they were “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)(4).) This argument again manifests
a misunderstanding of applicable law.
Purporting to rely on Wilson, the District contends, because
“a public school district is mandated by law to take all reasonable
steps to protect its students,” it follows that “investigation of
abusive teachers must be considered its pronouncement to the
community, i.e. speech, that it has done so.” In Wilson the
plaintiff was a cable news writer and producer who filed a
complaint for FEHA violations after he was fired due to
allegations of plagiarism. The network made two related
16
arguments as to why its termination of plaintiff’s employment
was protected activity within the meaning of section 425.16:
First, its selection of news producers was conduct in furtherance
of its free speech rights; second, its decision to terminate a writer
for plagiarism was conduct in furtherance of its protected activity
of upholding journalistic standards. The Supreme Court rejected
the first argument but agreed with the second. The Court
recognized a news organization’s publication of news concerning
matters of public interest “is an exercise of free speech rights
secured by the state and federal Constitutions.” (Wilson, supra,
7 Cal.5th at pp. 892-893.) However, the Court continued, “it does
not follow that everything the news organization does qualifies as
protected activity under the anti-SLAPP statute.” (Id. at pp. 893-
894.)
As to the network’s first argument, the Supreme Court
stated claims related to a news organization’s staffing decisions
would not be subject to a special motion to strike unless the
staffing decision had a “substantial effect on the news
organization’s ability to speak on public issues.” (Wilson, supra,
7 Cal.5th at p. 896.) Because the network had failed to show
Wilson had sufficient editorial control to affect its ability to speak
on public issues, the Court held his termination was not
protected activity. (Id. at pp. 896-897.) As to the network’s
second argument, the Court stated a news organization’s exercise
of free speech included the right to “maintain and enforce
standards of journalistic ethics.” (Id. at p. 897.) Finding the
network had made a prima facie case its termination of Wilson’s
employment was based on plagiarism, the Supreme Court found
the decision qualified as conduct in furtherance of its exercise of
free speech in connection with a public matter. (Id. at p. 898.)
17
Nothing in the Wilson Court’s analysis supports the
District’s position here. Even if the District adequately
demonstrated its staffing decisions concern a matter of public
interest, it has not identified any recognized constitutionally
protected right of free expression that a school district has in its
teacher assignment and hiring decisions.6 Indeed, in Park the
6 The District, citing Texas v. Johnson (1989) 491 U.S. 397,
one of the United States Supreme Court’s flag-burning decisions,
also suggests its decision to place Verceles on administrative
leave while investigating the charge of physical abuse was itself
expressive conduct, communicating the message the District
would safeguard its students, and thus protected First
Amendment activity within the meaning of section 425.16,
subdivision (e)(4). (See Wilson, supra, 7 Cal.5th at p. 893 [“[a]t a
minimum, [subdivision (e)(4)] shields expressive conduct—the
burning of flags, the wearing of armbands, and the like—that,
although not a ‘written or oral statement or writing’ (§ 425.16,
subd. (e)(1)-(3)), may similarly communicate views regarding
‘matters of public significance’”].) Conduct, however, is protected
by the First Amendment only if it “is inherently expressive.”
(Rumsfeld v. Forum for Academic & Institutional Rights, Inc.
(2006) 547 U.S. 47, 65-66; see United States v. O’Brien (1968)
391 U.S. 367, 376] [“[w]e cannot accept the view that an
apparently limitless variety of conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to
express an idea”].) That is, particular conduct is constitutionally
protected as speech only if “‘[a]n intent to convey a particularized
message was present’” and “‘the likelihood was great that the
message would be understood by those who viewed it.’” (Texas v.
Johnson, supra, at p. 404; accord, Spence v. Washington (1974)
418 U.S. 405, 410-411.) The District’s use of “teacher jail” while
investigating the allegations of Verceles’s misconduct falls far
short of satisfying that exacting standard. (See Baral v. Schnitt,
supra, 1 Cal.5th at p. 384 [it is the moving party’s burden to
18
Supreme Court rejected an argument similar to the one the
District makes here, noting the defendant had failed “to explain
how the choice of faculty involved conduct in furtherance of
University speech on an identifiable matter of public interest. . . .
Whether the grant or denial of tenure to this faculty member is,
or is not, itself a matter of public interest has no bearing on the
relevant questions—whether the tenure decision furthers
particular University speech, and whether that speech is on a
matter of public interest—and cannot alone establish the tenure
decision is protected activity under section 425.16,
subdivision (e)(4).” (Park, supra, 2 Cal.5th at p. 1072.)
The District alternatively contends its investigations into
alleged teacher misconduct, including its use of “teacher jail” as a
form of administrative leave, constitute conduct in furtherance of
protected petitioning or speech activity within the meaning of
section 425.16, subdivision (e)(4). The District reasons that,
because Verceles, as a certificated employee, had a right under
Education Code section 44944 to petition the Commission on
Professional Competence (CPC) to review the District’s decision
to terminate his employment at a contested hearing, its
prelitigation investigation, like pretrial civil discovery, was
protected activity under section 425.16, subdivision (e)(4), as
establish the challenged claim arising from activity protected by
section 425.16]; see also Clark v. Community for Creative Non-
Violence (1984) 468 U.S. 288, 293, fn. 5 [“it is the obligation of the
person desiring to engage in assertedly expressive conduct to
demonstrate that the First Amendment even applies”].)
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conduct incidental to the right to petition.7 This analysis is
fatally flawed.
CPC review is the final administrative step in the process
of terminating a permanent school employee. The argument the
District has crafted to support its special motion to strike
notwithstanding, presumably its investigation of Verceles’s
alleged assault of one of his students was undertaken to
determine whether the District’s board should dismiss him, not
7 Education Code section 44934, subdivision (b), provides,
“Upon the filing of written charges, duly signed and verified by
the person filing them, with the governing board of the school
district, or upon a written statement of charges formulated by the
governing board of the school district, charging that there exists
cause, as specified in Section 44932 or 44933, for the dismissal or
suspension of a permanent employee of the school district, the
governing board of the school district may, upon majority vote,
. . . give notice to the permanent employee of its intention to
dismiss or suspend him or her at the expiration of 30 days from
the date of service of the notice, unless the employee demands a
hearing as provided in this article.”
“Hearings to determine whether permanent public school
teachers should be dismissed or suspended are held before the
Commission on Professional Competence (Commission)—a three-
member administrative tribunal consisting of one credentialed
teacher chosen by the school board, a second credentialed teacher
chosen by the teacher facing dismissal or suspension, and ‘an
administrative law judge of the Office of Administrative Hearings
who shall be chairperson and a voting member of the commission
and shall be responsible for assuring that the legal rights of the
parties are protected at the hearing.’ [Citation.] The
Commission’s decision is deemed to be the final decision of the
district’s governing board.” (California Teachers Assn. v. State of
California (1999) 20 Cal.4th 327, 331-332; see Ed. Code, § 44944.)
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simply to defend that decision before the CPC if a hearing were
requested. (See Tichinin v. City of Morgan Hill (2009)
177 Cal.App.4th 1049, 1069, 1065 [“it as proper and appropriate
to protect prelitigation investigation as it is to protect
prelitigation letters that demand settlement or threaten legal
action discovery, and postlitigation settlement talks,” but conduct
that constitutes “a separate and distinct activity” from litigation
is not protected]; accord, People ex rel. Harris v. Aguayo (2017)
11 Cal.App.5th 1150, 1163.) Moreover, it is the teacher’s option
whether to seek CPC review of a school district’s decision to
terminate his or her employment. (Ed. Code, § 44944,
subd. (b)(1)(A).) The District’s participation in, or preparation
for, the statutorily defined procedures for dismissal or
suspension, without more, does not constitute conduct in
furtherance of the District’s own right to petition. (See
San Ramon Valley Fire Protection Dist. v. Contra Costa County
Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 354
[“[a]cts of governance mandated by law, without more, are not
exercises of free speech or petition”].) In this factual and legal
context, the District’s contention its investigation of Verceles and
its decision to place him on administrative leave in “teacher’s jail”
was conduct in furtherance of its own right to petition borders the
frivolous.8
8 Because we find the District failed to make the threshold
showing the complaint arose from protected activity, we need not
address the trial court’s finding Verceles had not established a
probability of prevailing on the merits.
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DISPOSITION
The judgment of dismissal and the orders granting the
District’s special motion to strike and awarding it attorney fees
are reversed. The cause is remanded with directions to the trial
court to enter a new order denying the special motion to strike.
Verceles is to recover his costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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