Okorie v. Los Angeles Unified School Dist.

Filed 8/16/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DIOKA OKORIE et al., B268733
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC582670)
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Deirdre H. Hill, Judge. Affirmed.
Law Offices of Akudinobi & Ikonte, Chijioke O. Ikonte;
Law Office of Metu C. Ogike and Metu Chikezie Ogike for
Plaintiffs and Appellants.
Anthony J. Bejarano, Assistant General Counsel, and
Alexander Molina, Chief Labor and Employment Counsel,
for Defendants and Respondents
——————————
In 2015, Dioka Okorie (Okorie) sued his employer, Los
Angeles Unified School District (LAUSD) and two of his
supervisors, Jacqueline Hughes (Hughes) and Cynthia
Jackson (Jackson) (collectively, Defendants), alleging, among
other things, discrimination, harassment, and retaliation.
In response, Defendants filed a special motion to strike the
complaint pursuant to section 425.16 of the Code of Civil
Procedure1—a so-called anti-SLAPP motion2—which the
trial court granted.
On appeal, Okorie and his wife, Nkeiru Okorie
(collectively, Plaintiffs) advance two principal arguments.
First, they contend that the trial court erred in granting the
anti-SLAPP motion because the complaint contained
allegations regarding both protected and unprotected
activities by the Defendants. Second, they argue that the
motion should have been denied because they demonstrated
a likelihood of success on certain of their causes of action.
We disagree with both arguments and, accordingly, affirm.
1 All further statutory references are to the Code of
Civil Procedure unless otherwise indicated.
2
SLAPP is an acronym for “strategic lawsuit against
public participation.” (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal. 4th 53, 57.)
2
BACKGROUND
I. Plaintiffs’ complaint
According to the complaint, in 2003, LAUSD hired
Okorie as a teacher at Westport Heights Elementary School.
While at the school, Okorie took on a number of
responsibilities in addition to his classroom duties; for
example, after normal school hours (i.e., when he was not
being paid) he worked with at-risk students.
In 2013, LAUSD appointed Hughes as the school’s
principal. Shortly thereafter Hughes allegedly began to
harass Okorie on a “constant” or “monthly” basis. Among
other things, Hughes purportedly questioned Okorie’s
disciplinary practices, telling him, “ ‘I know you are from
Africa and the way you reprimand kids in Africa is different
from here in America.’ ” In addition, Hughes undermined
Okorie’s reputation with his coworkers by telling them that
“parents were complaining to her about [him],” but never
meeting with Okorie to discuss these complaints. Moreover,
Hughes would allegedly have “meetings with other members
of the [school’s] teaching staff but would not meet with
[him]” and would “send messages and directives to [him]
through his colleagues.” At one point, Hughes allegedly
asked Okorie to “bear false witness” against a parent in
favor of another teacher; when Okorie refused to do so,
Hughes’s alleged harassment of Okorie “intensified.” This
intensified harassment included “meritless write ups” that
were hand delivered by the school’s administrative staff to
Okorie during “instructional hours.”
3
On April 4, 2014, Hughes summoned Okorie to her
office where Jackson, a representative of LAUSD’s
Educational Service Center West (ESC), advised Okorie that
an “ ‘allegation’ ” had been made against him and, as a
result, he was reassigned to his home pending the
investigation. Hughes subsequently advised the school’s
parents that Okorie had been “walked off campus for
misconduct and the . . . safety of staff and students.” Shortly
after putting Okorie on home leave, Hughes advised him
that he had been reassigned to ESC, which, according to
Okorie is “commonly known as teacher jail.” At ESC, Okorie
suffered harassment from Jackson on a “weekly basis.”
Among other things, the harassment involved Jackson
yelling at Okorie as she demanded that he return the
computer that LAUSD had issued to him. Okorie remained
at ESC until LAUSD charged him with misconduct involving
students.
On the morning of October 13, 2014, LAUSD
investigators appeared at Okorie’s home with a search
warrant. As some of the officers searched the home for a
laptop and a computer tablet, other officers questioned
Okorie and his wife while their children were in the living
room crying; the questioning included inquiries about the
Ebola outbreak that was at the time occurring in several
countries in West Africa.
Plaintiffs do not allege that LAUSD ever terminated
Okorie’s employment. Instead they allege that “[a]s a result
of the [accumulation] of the above described
4
incidents . . . . Plaintiffs . . . faced unimaginable humiliation
and embarrassment” due to Defendants’ conduct.3
Based on these factual averments, Plaintiffs asserted
eight separate causes of action: five claims brought
pursuant to the Fair Employment and Housing Act
(FEHA)—discrimination based on race and national origin;
gender discrimination; retaliation; failure to prevent
discrimination; and racial harassment; two common law
causes of action—intentional infliction of emotional distress
and defamation; and a federal civil rights cause of action
brought pursuant to title 42 United States Code section
1983.
Consistent with their accumulation theory, Plaintiffs
do not identify specifically or list separately each act of
alleged misconduct by Defendants giving rise to each cause
of action. For example, in connection with their employment
discrimination causes of action, Plaintiffs do not identify the
specific adverse employment actions giving rise to their
claims. Instead, they allege generally that all of the various
acts of misconduct identified in the section of their complaint
entitled “FACTS COMMON TO ALL CAUSES OF ACTION”
constitute the operative adverse employment actions.
(Underscore omitted.)
3 In their complaint Plaintiffs used the word
“culmination,” not “accumulation.” However, based on the
surrounding language, it appears that Plaintiffs meant
accumulation, not culmination. Accordingly, we will proceed
as though Plaintiffs had chosen accumulation.
5
II. Defendants’ anti-SLAPP motion
Defendants challenged Plaintiffs’ complaint by filing
an anti-SLAPP motion only. In other words, Defendants’
special motion to strike was not accompanied by any other
challenges, such as a demurrer and/or a conventional motion
to strike. In their anti-SLAPP motion, which sought to
strike the entire complaint, the Defendants argued that the
gravamen of the complaint (as well as each individual cause
of action) was based on protected activity—speech or
communicative conduct either made as part of or as a
precursor to the internal investigation that LAUSD
undertook in response to a molestation allegation made
against Okorie.
In support of their anti-SLAPP motion, the Defendants
provided additional information regarding the alleged
molestation. Much of this information came from John
Metcalf (Metcalf), an investigator on LAUSD’s Student
Safety Investigation Team (SSIT). On March 31, 2014,
during a retreat, a senior at St. Bernard High School
revealed to 68 classmates and five teachers that, when he
was younger, he had been molested by a teacher. The next
day, the student’s teacher made a state-mandated report of
suspected child abuse. While being interviewed by officers
from the Los Angeles Police Department (LAPD), the
student identified Okorie as his molester. The student
further stated that Okorie had molested him on three
separate occasions: March 2006; November 2006; and
February 2007.
6
On April 2, 2014, LAPD informed LAUSD of the
student’s allegations. Two days later, on April 4, 2014,
LAUSD removed Okorie from his classroom and assigned
him to his home pending the investigation into the
allegations. Throughout the course of the subsequent
investigation, Okorie refused to answer questions from
either the LAPD or SSIT.
As part of SSIT’s investigation into the molestation
allegations, LAUSD directed Okorie to turn over all LAUSD
computer equipment that had been issued to him, including
a laptop and a computer tablet. Okorie advised LAUSD that
he did not know where the computers were. LAPD
subsequently obtained a warrant to search the records of
Okorie’s personal internet service provider; those records
revealed that the laptop and the tablet were accessing
internet service from Okorie’s home. In October 2014, five
months after first being asked to return LAUSD’s property,
LAUSD, pursuant to a search warrant, found the computers
at Okorie’s home.
During the course of its investigation into the
molestation allegation, SSIT became aware of two alleged
incidents of improper discipline and child abuse by Okorie
during the period 2011–2013.
III. Plaintiffs’ opposition
In their opposition, Plaintiffs stressed that not all of
the alleged misconduct arose out of the molestation
investigation, that some of the alleged misconduct predated
the investigation.
7
In support of their opposition to Defendant’s anti-
SLAPP motion, Plaintiffs submitted a number of
declarations, including a declaration by Okorie. In his
declaration, Okorie provided additional details about the
acts of harassment alleged in the complaint. With regard to
the return of the computer devices issued to him by LAUSD,
Okorie denied lying about the whereabouts of the computers
and stated that he did not need to return the property when
requested to do so in May 2014, because at the time he was
still a LAUSD employee. He flatly denied the molestation
allegation and improper discipline allegations.
Most of the other declarations derived from various
character witnesses—parents of students taught by Okorie
and pastors, all of whom attested to Okorie’s high moral
temperament and abilities as a teacher.
In addition, Plaintiffs filed evidentiary objections to
Metcalf’s declaration.
IV. The trial court’s ruling
On November 6, 2015, the trial court heard oral
argument on Defendants’ anti-SLAPP motion, took the
matter under submission, and then issued a written ruling
granting the motion. The trial court found that Plaintiffs’
claims were subject to the anti-SLAPP statute because the
“gravamen of the complaint” related to protected conduct by
LAUSD: communications and actions related to the internal
investigation into the molestation allegations. With regard
to Plaintiffs’ evidence, the trial court found that the
“character” declarations were irrelevant, as they did not
8
offer any facts to support the allegations of the complaint.
As for Okorie’s declaration, the trial court found it to be
“fraught with inadmissible legal conclusions accusing of
harassment rather than setting forth factual allegations
evidencing the same.” As a result, the trial court determined
that Okorie had failed to present “a prima facie case of the
core contentions in his complaint of discrimination,
harassment or retaliation.”
Plaintiffs filed a timely notice of appeal.
DISCUSSION
I. The anti-SLAPP statute and applicable legal
principles
A. SECTION 425.16
“A SLAPP is a civil lawsuit that is aimed at preventing
citizens from exercising their political rights or punishing
those who have done so. ‘ “While SLAPP suits masquerade
as ordinary lawsuits such as defamation and interference
with prospective economic advantage, they are generally
meritless suits brought primarily to chill the exercise of free
speech or petition rights by the threat of severe economic
sanctions against the defendant, and not to vindicate a
legally cognizable right.” ’ ” (Simpson Strong-Tie Co., Inc. v.
Gore (2010) 49 Cal. 4th 12, 21 (Simpson).)
“In 1992, out of concern over ‘a disturbing increase’ in
these types of lawsuits, the Legislature enacted
section 425.16, the anti-SLAPP statute. (§ 425.16, subd. (a).)
The statute authorized the filing of a special motion to strike
to expedite the early dismissal of these unmeritorious
9
claims. (§ 425.16, subds. (b)(1), (f).) To encourage ‘continued
participation in matters of public significance’ and to ensure
‘that this participation should not be chilled through abuse
of the judicial process,’ the Legislature expressly provided
that the anti-SLAPP statute ‘shall be construed broadly.’
(§ 425.16, subd. (a).)” (Simpson, supra, 49 Cal.4th at p. 21.)
The anti-SLAPP statute “provides a procedure for
weeding out, at an early stage, meritless claims arising from
protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384 (Baral).) The statute applies to “cause[s] 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.” (§ 425.16,
subd. (b)(1), italics added.) As used in the statutory scheme,
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
10
petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.”
(§ 425.16, subd. (e).)
B. EVALUATING ANTI-SLAPP MOTIONS
In ruling on a motion under section 425.16, the trial
court engages in what is now a familiar 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,
supra, 1 Cal.5th at p. 384.)
1. Step one: protected activity?
The moving party’s burden at step one is to show “the
challenged cause of action arises from protected activity.”
(Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1056.) “[T]he
statutory phrase ‘cause of action . . . arising from’ means
simply that the defendant’s act underlying the plaintiff’s
cause of action must itself have been an act in furtherance of
the right of petition or free speech. [Citation.] In the anti-
SLAPP context, the critical point is whether the plaintiff’s
cause of action itself was based on an act in furtherance of
the defendant’s right of petition or free speech. [Citations.]
‘A defendant meets this burden by demonstrating that the
act underlying the plaintiff’s cause [of action] fits one of the
categories spelled out in section 425.16, subdivision (e).’ ”
(City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78.) In
other words, “it is not enough to establish that the action
11
was filed in response to or in retaliation for a party’s exercise
of the right to petition. [Citations.] Rather, the claim must
be based on the protected petitioning activity.” (Bergstein v.
Stroock & Stroock & Lavan LLP (2015) 236 Cal. App. 4th 793,
804.) “[I]f the defendant does not meet its burden on the
first step, the court should deny the motion and need not
address the second step.” (Tuszynska v. Cunningham (2011)
199 Cal. App. 4th 257, 266, disapproved on other grounds in
Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1071 (Park).)
a. The principal thrust and gravamen analysis
In determining whether a cause of action is based on
protected activity, we “examine the principal thrust or
gravamen of a plaintiff’s cause of action to determine
whether the anti-SLAPP statute applies.” (Ramona Unified
School Dist. v. Tsiknas (2005) 135 Cal. App. 4th 510, 519–
520.)4 “We assess the principal thrust by identifying ‘[t]he
allegedly wrongful and injury-producing conduct . . . that
provides the foundation for the claim.’ ” (Hylton v. Frank E.
Rogozienski, Inc. (2009) 177 Cal. App. 4th 1264, 1272.)
“When relief is sought based on allegations of both
protected and unprotected activity, the unprotected activity
is disregarded at [the first] stage. If the court determines
4 Gravamen is generally understood to mean “the
substantial point or essence of a claim, grievance or
complaint.” (Black’s Law Dict. (10th ed. 2014) p. 817, col. 1;
Garner, Dict. of Modern Legal Usage (2d ed. 1995) p. 391
[“the point of a complaint or grievance”].)
12
that relief is sought based on allegations arising from
activity protected by the statute, the second step is reached.”
(Baral, supra, 1 Cal.5th at p. 396.) However, “if the
allegations of protected activity are only incidental to a
cause of action based essentially on nonprotected activity,
the mere mention of the protected activity does not subject
the cause of action to an anti-SLAPP motion.” (Scott v.
Metabolife Internat., Inc. (2004) 115 Cal. App. 4th 404, 414;
accord, Kenne v. Stennis (2014) 230 Cal. App. 4th 953, 967–
968; World Financial Group, Inc. v. HBW Ins. & Financial
Services, Inc. (2009) 172 Cal. App. 4th 1561, 1574.) A claim
based on protected activity is incidental or collateral if it
“merely provide[s] context, without supporting a claim for
recovery.” (Baral, at p. 394.)
Courts have held that a “mixed cause of action”—that
is, one based on both protected and unprotected activity—“is
subject to section 425.16 if at least one of the underlying acts
is protected conduct, unless the allegations of protected
conduct are merely incidental to the unprotected activity.”
(Salma v. Capon (2008)161 Cal. App. 4th 1275, 1287).
However, in making this inquiry, courts have generally gone
beyond determining the mere existence of one claim of
protected activity; instead, they look to see whether the
essence or “bulk” of the cause of action is based on protected
activity. (Id. at p. 1288.) For example, in Wang v. Wal–Mart
Real Estate Business Trust (2007) 153 Cal. App. 4th 790, 809,
the Court of Appeal overturned the trial court’s ruling that
the complaint arose from protected activity, holding that the
13
anti-SLAPP protections did not apply because the “overall
thrust” of the complaint was based on unprotected activity
and the protected activity—pursuit of government permits—
was collateral to the parties’ dispute. Similarly, in
Baharian-Mehr v. Smith (2010) 189 Cal. App. 4th 265, 273,
the Court of Appeal affirmed the denial of defendant’s anti-
SLAPP motion because the “gravamen” of the plaintiff’s
complaint was not defendant’s protected conduct; the
defendant’s petitioning activity was “ ‘only incidental’ to a
business dispute based on nonprotected activity.”5
In short, “whether a cause of action is subject to a
motion to strike under the SLAPP statute turns on whether
the gravamen of the cause of action targets protected
activity. [Citation.] If liability is not based on protected
activity, the cause of action does not target the protected
activity and is therefore not subject to the SLAPP statute.
[Citations.] . . . [¶] Where, as here, a cause of action is based
on both protected activity and unprotected activity, it is
subject to section 425.16 ‘ “unless the protected conduct is
‘merely incidental’ to the unprotected conduct.” ’ ” (Haight
Ashbury Free Clinics, Inc. v. Happening House Ventures
(2010) 184 Cal. App. 4th 1539, 1550–1551.) In other words, “a
5 See California Back Specialists Medical Group v.
Rand (2008) 160 Cal. App. 4th 1032, 1036–1037; Freeman v.
Schack (2007) 154 Cal. App. 4th 719, 727; Gallanis–Politis v.
Medina (2007) 152 Cal. App. 4th 600, 615; Scott v. Metabolife
Internat., Inc., supra, 115 Cal.App.4th at p. 416; Martinez v.
Metabolife Internat., Inc. (2003) 113 Cal. App. 4th 181, 188.
14
plaintiff cannot frustrate the purposes of the SLAPP statute
through a pleading tactic of combining allegations of
protected and nonprotected activity under the label of one
‘cause of action.’ ” (Fox Searchlight Pictures, Inc. v. Paladino
(2001) 89 Cal. App. 4th 294, 308.)
b. The principal thrust or gravamen analysis
after Baral
In the wake of Baral, supra, 1 Cal.5th 376, one court
has rejected the principal thrust or gravamen analysis.
(Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1170 (Sheley).)
We are not convinced, however, that Sheley’s rejection is
well-taken.
First, Sheley’s wholesale rejection of the principal
thrust or gravamen analysis is based largely on an
extrapolation from Baral, supra, 1 Cal.5th 376. (Sheley,
supra, 9 Cal.App.5th 1147.) In Baral, our highest court
disapproved a number of cases that used the “primary right
theory” to determine whether a cause of action is based on
protected activity. (Baral, at pp. 394–395.) Baral explained
that the primary rights theory has a “ ‘fairly narrow field of
application. It is invoked most often when a plaintiff
attempts to divide a primary right and enforce it in two
actions.’ ” (Id. at p. 395.) In addition, “the primary right
theory is notoriously uncertain in [its] application.” (Ibid.)
Based on Baral’s rejection of the primary rights theory,
Sheley rejected the principal thrust/gravamen analysis.
(Sheley, at p. 1170.) Baral, however, (as Sheley concedes) did
15
not address, let alone disapprove, the principal
thrust/gravamen analysis. (See Sheley, at p. 1170.)
Second, Sheley’s rejection appears to be based, in part,
on an overbroad reading of Baral, supra, 1 Cal.5th 376.
(Sheley, supra, 9 Cal.App.5th 1147.) In Baral, our Supreme
Court simply held that a special motion to strike can reach
distinct claims within pleaded counts, thereby disapproving
the so-called Mann rule that only entire causes of action can
be stricken (Mann v. Quality Old Time Service, Inc. (2004)
120 Cal. App. 4th 90). (See Baral, at p. 396 & fn. 11.) But
Baral did not say that a special motion to strike must always
be limited to challenges within a pleaded count. Rather,
Baral adopted a permissive approach: “the Legislature’s
choice of the term ‘motion to strike’ reflects the
understanding that an anti-SLAPP motion, like a
conventional motion to strike, may be used to attack parts of
a count as pleaded.” (Id. at p. 393, italics added.) In other
words, a special motion to strike, like a conventional motion
to strike may be used to attack an entire pleading, such as a
complaint, and various subparts of a pleading, such as a
cause of action or pleaded count, as well as component
paragraphs, words or phrases. Critically, in this case,
Defendants did not move to strike certain subparts of
Plaintiffs’ complaint. Instead, they expressly moved to
strike Plaintiffs’ entire complaint based on “the gravamen of
the complaint.”
Third, in Baral, supra, 1 Cal.5th 376, the court’s
holding was based on a conclusion that a special motion to
16
strike was substantially similar to a conventional motion to
strike. (See id. at p. 394.) However, when a conventional
motion to strike is directed at something less than an entire
pleading or an entire cause of action, the notice of motion
must quote in full the portions to be stricken so that there is
no confusion among the parties and the trial court as to what
is at issue and, if the motion is successful, what exactly is to
be stricken. (Cal. Rules of Court, rule 3.1322.) There is,
however, no such similar rule for special motions to strike
either in the text of section 425.16 or the California Rules of
Court. Baral did not address this practical but vital aspect
of special motions to strike, because the anti-SLAPP motion
at issue in that case did not seek to strike the entire
complaint or even entire causes of action, but instead was
limited to “isolated allegations within causes of action,”
namely all references to an audit. (Baral, at p. 384.) Thus,
Baral is silent on how the parties, the trial court, and (given
the immediate right of appeal for special motions to strike) a
reviewing court are to proceed where the plaintiff’s protected
and unprotected claims, as here, are not well delineated and
are even enmeshed one within another and the moving party
has sought to strike the entire complaint.
Even before Baral, supra, 1 Cal.5th 376, courts worried
that not allowing a defendant to strike claims within a cause
of action would allow litigants to circumvent the anti-SLAPP
law by artfully pleading allegations based on unprotected
activity in the same cause of action as allegations based on
protected activity. (See, e.g., Cho v. Chang (2013) 219
17
Cal. App. 4th 521, 527; City of Colton v. Singletary (2012) 206
Cal. App. 4th 751, 774.) Unfortunately, absent further
guidance to litigants as to how claims must be alleged and/or
how special motions to strike must be framed, the
protections of the anti-SLAPP law may still be circumvented
by the inartful pleading of claims (deliberately or innocently)
that allege both protected and unprotected activity.
Accordingly, we hold that, under the facts of this case (where
the plaintiff has not specifically asked for relief as to some
specified unprotected conduct that is a subpart of a cause of
action), the principal thrust/gravamen analysis remains a
viable tool by which to assess whether a plaintiff’s claim
arises out of protected activity.
c. The defendant’s burden
A defendant’s burden on the first prong is not an
onerous one. A defendant need only make a prima facie
showing that plaintiff’s claims arise from defendant’s
constitutionally protected free speech or petition rights. (See
(Governor Gray Davis Com. v. American Taxpayers Alliance
(2002) 102 Cal. App. 4th 449, 456.) “ ‘The Legislature did not
intend that in order to invoke the special motion to strike
the defendant must first establish [his or] her actions are
constitutionally protected under the First Amendment as a
matter of law.’ [Citation.] ‘Instead, under the statutory
scheme, a court must generally presume the validity of the
claimed constitutional right in the first step of the anti-
SLAPP analysis, and then permit the parties to address the
issue in the second step of the analysis, if necessary.
18
[Citation.] Otherwise, the second step would become
superfluous in almost every case, resulting in an improper
shifting of the burdens.’ ” (Id. at p. 458, italics added.)
2. Step two: probability of prevailing?
“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,
supra, 1 Cal.5th at p. 384.) The plaintiff must do so with
admissible evidence. (Kreeger v. Wanland (2006) 141
Cal. App. 4th 826, 831.) “We decide this step of the analysis
‘on consideration of “the pleadings and supporting and
opposing affidavits stating the facts upon which the liability
or defense is based.” (§ 425.16, subd. (b).) Looking at those
affidavits, “[w]e do not weigh credibility, nor do we evaluate
the weight of the evidence. Instead, we accept as true all
evidence favorable to the plaintiff.” ’ ” (Burrill v. Nair (2013)
217 Cal. App. 4th 357, 378–379, disapproved in part in Baral,
at p. 396, fn. 11.) This second step has been described as a
“ ‘summary-judgment-like procedure.’ ” (Baral, at p. 384.) A
court’s second step “inquiry is limited to whether the
[opposing party] has stated a legally sufficient claim and
made a prima facie factual showing sufficient to sustain a
favorable judgment. [The court] . . . evaluates the
defendant’s showing only to determine if it defeats the
plaintiff’s claim as a matter of law.” (Id. at pp. 384–385.)
“Only a [claim] 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
19
stricken under the statute.” (Navellier v. Sletten (2002) 29
Cal. 4th 82, 89.)
C. STANDARD OF REVIEW
“On appeal, we review the trial court’s decision de
novo, engaging in the same two-step process to determine, as
a matter of law, whether the defendant met its initial
burden of showing the action is a SLAPP, and if so, whether
the plaintiff met its evidentiary burden on the second step.”
(Tuszynska v. Cunningham, supra, 199 Cal.App.4th at
pp. 266–267.)
II. The gravamen of Plaintiffs’ claims6 is protected
activity
On appeal, Plaintiffs challenged the striking of only the
following claims: discrimination based on race and national
origin; failure to prevent discrimination; intentional
infliction of emotional distress; harassment; and violation of
title 42 United States Code section 1983. We hold that, on
balance, that Plaintiffs’ claims at issue in this appeal are
based on protected activity.
6 To avoid confusion, our high court in Baral, supra, 1
Cal.5th 376 referred to “the proper subject of a special
motion to strike as a ‘claim’ ” instead of a “ ‘cause of action.’ ”
(Id. at p. 382.) Accordingly, we do the same here.
20
A. PLAINTIFFS’ CLAIMS ARISE FROM STATEMENTS OR
COMMUNICATIVE CONDUCT
At the outset, we note that in Park, supra, 2 Cal.5th
1057,7 our Supreme Court clarified that “[a] claim arises
from protected activity when that activity underlies or forms
the basis for the claim.” (Id. at p. 1062.) “ ‘[T]he defendant’s
act underlying the plaintiff's cause of action must itself have
been an act in furtherance of the right of petition or free
speech.’ ” (Id. at p. 1063, italics omitted.) “[T]he focus is on
determining what ‘the defendant’s activity [is] that gives rise
to his or her asserted liability—and whether that activity
constitutes protected speech or petitioning.’ ” (Ibid.) Put a
little differently, courts must “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.)
In Park, supra, 2 Cal.5th 1057, a professor who was
denied tenure sued the university alleging national origin
discrimination. (Id. at p. 1061.) The university filed an anti-
SLAPP motion, which the trial court denied, ruling that “the
complaint was based on the University’s decision to deny
tenure, rather than any communicative conduct in
7
The Supreme Court issued Park, supra, 2 Cal.5th
1057 shortly before oral argument in this case but after the
parties had completed their briefing. Accordingly, at oral
argument, we requested that the parties submit
supplemental briefing on whether Park affects the resolution
of this appeal.
21
connection with that decision.” (Ibid.) The Court of Appeal
reversed, holding that a claim alleging a discriminatory
decision is subject to an anti-SLAPP motion so long as the
protected speech and activity contributed to that decision.
(Id. at pp. 1061–1062.)
Our highest court reversed, holding that a
discrimination 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.” (Park, supra, 2 Cal.5th at
p. 1060.) As the Court further explained, “What gives rise to
liability is not that the defendant spoke, but that the
defendant denied the plaintiff a benefit, or subjected the
plaintiff to a burden, on account of a discriminatory or
retaliatory consideration.” (Id. at p. 1066.) “Failing to
distinguish between the challenged decisions and the speech
that leads to them or thereafter expresses them ‘would chill
the resort to legitimate judicial oversight over potential
abuses of legislative and administrative power.’
[Citations.] . . . [Citation.] Conflating, in the anti-SLAPP
analysis, discriminatory decisions and speech involved in
reaching those decisions or evidencing discriminatory
animus could render the anti-SLAPP statute ‘fatal for most
harassment, discrimination and retaliation actions against
public employers.’ ” (Id. at p. 1067.) The Park court
observed that while “[t]he tenure decision may have been
communicated orally or in writing . . . that communication
does not convert Park’s suit to one arising from such speech.”
22
(Id. at p. 1069.) In other words, the speech at issue in Park
was incidental or collateral to the plaintiff’s claim.
Park, supra, 2 Cal.5th 1057, does not help the instant
Plaintiffs for two reasons. First, while the gravamen of the
complaint in Park was, undeniably, the university’s decision
to deny the plaintiff tenure (id. at pp. 1067–1068), Plaintiffs’
claims here are not based on a specific, unprotected adverse
employment action. Instead, Okorie and his wife allege that
Okorie suffered a wide array of adverse employment actions
stretching over more than a year (from early 2014 to mid-
2015). Second, and more critically, while some of those
adverse employment actions involve arguably unprotected
decisions by LAUSD (e.g., removal of Okorie from his
classroom to his home; reassignment of Okorie from his
home to ESC, the so-called teacher’s jail), the bulk of those
actions were statements or communicative conduct made by
LAUSD personnel. In other words, in contrast to Park, the
protected activity here “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.” (Id. at p. 1060.)
This conclusion is made manifest by the complaint. For
example, Plaintiffs complained that the phone calls made
and the letters sent by defendant Hughes (the school’s
principal) to the school’s parents following Okorie’s removal
from the school constituted “mistreatment and harassment.”
Similarly, Plaintiffs allege that a notice sent by LAUSD to
the California credentialing commission after his removal
from the classroom “shocked and humiliated” him. In
23
addition to protected speech which arose out of the
molestation investigation, Plaintiffs premised their claims
on a number of preinvestigation statements which
purportedly caused injury, such as statements by Hughes to
Okorie regarding corporal punishment practices in the
United States versus those in Africa and the purportedly
meritless write-ups of Okorie’s deficiencies as a teacher.
The critical primary conduct here is quite different
than that at issue in Park, supra, 2 Cal.5th 1057. “Park’s
complaint [wa]s ‘based on the [single] act of denying plaintiff
tenure based on national origin. [In Park,] [p]laintiff could
have omitted allegations regarding communicative
acts . . . and still state the same claims.’ ” (Id. at p. 1068.) In
contrast, Plaintiffs’ complaint here is based collectively on a
handful of decisions (unsupported by any evidence of
discriminatory animus) and a wide array of allegedly injury-
causing statements and communicative conduct by
Defendants. In other words, the speech complained of here
does not merely “supply evidence of animus.” (Ibid.) Rather,
the speech at issue is explicitly alleged to be the injury-
producing conduct. Because LAUSD’s speech and
communicative conduct is the wrong complained of, the next
question in our inquiry is whether that speech and
communicative conduct was protected.
B. THE STATEMENTS AND COMMUNICATIVE CONDUCT AT
ISSUE ARE PROTECTED
Plaintiffs allege that they were injured by Defendants’
statements and communicative conduct both before and after
24
the molestation investigation. However, as noted above,
Plaintiffs do not allege distinct pre- and postmolestation
investigation claims. Instead, they allege that it was an
accumulation of all of the alleged incidents that “materially
affected” Okorie’s employment. Although Plaintiffs claims
are based, in part, on preinvestigation conduct by
Defendants, during oral argument Plaintiffs’ counsel
effectively conceded that his clients would not have filed a
lawsuit if the only conduct at issue was Defendants’
preinvestigation conduct. Accordingly, we will focus on
whether the alleged protected statements and
communicative conduct made by Defendants in connection
with their investigation were collateral to Plaintiffs’ claims
or constituted the principal thrust or gravamen of those
claims.8
8
Although our focus is on Defendants’ statements
made in connection with the molestation investigation, we
believe that most of the preinvestigation statements are
protected. It is well established that public employees enjoy
First Amendment protections in regard to statements they
make as part of their official duties on matters of public
concern, even if those statements are made privately to other
public employees. (See Bradbury v. Superior Court (1996) 49
Cal. App. 4th 1108, 1117 [“[p]rivate conversations” concerning
report protected under anti-SLAPP statute]; Averill v.
Superior Court (1996) 42 Cal. App. 4th 1170, 1174–1176 [anti-
SLAPP statute applied private conversation regarding public
issue].) As the court in Bradbury observed, “The exchange of
ideas would be unduly curtailed if a governmental entity and
25
It is well established that internal investigations
constitute an “official proceeding authorized by law,” which
is another of the categories of protected activity under the
anti-SLAPP statute. (§ 425.16, subd. (e); Hansen v.
Department of Corrections and Rehabilitation (2008) 171
Cal. App. 4th 1537, 1544 [dismissing emotional distress claim
based on investigation].) In Miller, supra, 169 Cal. App. 4th
1373, the Court of Appeal affirmed the trial court’s decision
to grant the defendant’s anti-SLAPP motion because
plaintiff’s defamation and intentional infliction of emotional
distress claims arose from protected activity because they
its representatives could not freely express themselves on
matters of public interest.” (Bradbury, at p. 1118.)
Here, most of the alleged preinvestigation
statements—including statements by Hughes to Okorie
concerning comparative corporal punishment practices,
statements by Hughes to other teachers about parent
complaints against Okorie because their “kids were scared of
[him],” and Hughes’s write-ups of Okorie for his failure to
adhere to rules—were protected by the anti-SLAPP statute,
because such statements concern “a public issue or an issue
of public interest” (§ 425.16, subd. (e)(4)), namely education
and child and student safety. (See Miller v. City of Los
Angeles (2008) 169 Cal. App. 4th 1373, 1383 (Miller) [public
employee’s misconduct issue of public interest].) Plaintiffs,
however, do allege one preinvestigation statement by
Hughes that does not appear to be protected speech.
Plaintiffs allege that in March 2014, Hughes purportedly
asked Okorie to “bear false witness” in favor of another
teacher and against a parent.
26
were based on a city’s “investigation into [plaintiff]’s conduct
in connection with his public employment and its
determination and report that he had engaged in misconduct
on the job.” (Id. at pp. 1378–1379, 1383; Gallanis–Politis v.
Medina, supra, 152 Cal.App.4th at pp. 610–611 [retaliation
claim based on investigation protected activity].) In short, as
another division of this court has stated, “It can no longer be
questioned that section 425.16 extends to government
entities and employees that issue reports and take positions
on issues of public interest relating to their official duties.”
(Santa Barbara County Coalition Against Automobile
Subsidies v. Santa Barbara County Assn. of Governments
(2008) 167 Cal. App. 4th 1229, 1237–1238; see generally Weil
& Brown, Cal. Practice Guide: Civil Procedure Before Trial
(The Rutter Group 2016) ¶ 7:625, p. 7(II)–16.)
As a result, Plaintiffs’ investigation-related speech
allegations—e.g., statements to parents and others about
Okorie’s removal from the classroom and repeated demands
for the return of LAUSD technology—were protected by the
anti-SLAPP statute.
Because Defendants made a prima facie showing that
the speech and communicative conduct at issue was
protected, we must next determine if that protected activity
was incidental or integral to Plaintiffs’ claims.
27
C. THE PROTECTED STATEMENTS AND COMMUNICATIVE
CONDUCT AT ISSUE ARE INTEGRAL, NOT INCIDENTAL, TO
PLAINTIFFS’ CLAIMS
A fair reading of the complaint shows that the
investigation-related statements at issue were not collateral
to Plaintiffs’ claims but formed the very heart of Plaintiffs’
demands for relief. The complaint’s leitmotiv is a profound
sense of humiliation—Plaintiffs allege that they “and their
entire family have faced unimaginable humiliation and
embarrassment” due to Defendants’ alleged misconduct. The
complaint makes clear that the primary cause for this
humiliation and embarrassment is LAUSD’s speech and
communicative conduct related to the investigation. For
example, Plaintiffs allege that the phone calls and letters to
the parents following Okorie’s removal from the school
constituted mistreatment and harassment. The letter to the
credentialing commission “totally shocked and humiliated”
Okorie. The repeated demands for the return of LAUSD
computers “humiliated and embarrassed” Okorie and
compelled him to complain about Jackson’s communicative
conduct to her superiors and to other administrative staff.
The questioning of Okorie about the then-recent Ebola
outbreak in West Africa by one of the officers’ serving the
subpoena “further humiliated” Okorie.9
9
Okorie’s feelings of humiliation were not confined to
Defendants’ statements made during the postinvestigation
period, but included statements that preceded the
investigation. According to the complaint, Okorie was
28
In contrast, the complaint does not expressly allege
that Okorie was humiliated by the arguably unprotected
decisions taken by LAUSD. For example, Plaintiffs did not
allege that the primary source of the alleged discrimination
against Okorie was his reassignment from his classroom to
his home following LAUSD’s notification to him of the
molestation allegation. Nor did Plaintiffs expressly allege
that the principal discriminatory act against Okorie was his
subsequent reassignment from his home to ESC, the so-
called teacher’s jail. The gravamen of Plaintiffs’ theory is
discrimination via humiliation; that theory of humiliation is
meaningless outside the context of the protected speech to
which anti-SLAPP protection applies.
In short, it is plain from Plaintiffs’ allegations that
Defendants’ speech and communicative conduct regarding
the investigation are not incidental to—but integral to—
Plaintiffs’ complaint and each cause of action alleged
therein. Indeed, the principal thrust or gravamen of
Plaintiffs’ complaint and its component causes of action is
protected speech or communicative conduct. Accordingly, we
hold that Defendants have met their threshold burden of
showing that Plaintiffs’ claims arose out of protected activity
that is not incidental to the claim. (Baral, supra, 1 Cal.5th
at p. 396.)
shocked and humiliated by Hughes’s observation about the
difference between corporal punishment practices in
California and in Africa.
29
III. Plaintiffs did not show a probability of
prevailing on their claims
Plaintiffs concede that the court did not err in striking
some of their claims (gender discrimination, retaliation, and
defamation). This concession, however, does not save their
remaining claims (discrimination based on race and national
origin; failure to prevent discrimination; intentional
infliction of emotional distress; racial/national origin
harassment; and violation of title 42 United States Code
section 1983), because Plaintiffs failed to meet their burden
of showing a probability of prevailing on any of those claims.
A. PLAINTIFFS’ RACE AND NATIONAL ORIGIN
DISCRIMINATION CLAIM
Although the specific elements necessary to establish a
prima facie case for racial discrimination may vary
depending on the underlying facts, “[g]enerally, the plaintiff
must provide evidence that (1) he was a member of a
protected class, (2) he was qualified for the position he
sought or was performing competently in the position he
held, (3) he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and
(4) some other circumstance suggests discriminatory
motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th
317, 355; Horne v. District Council 16 Internat. Union of
Painters & Allied Trades (2015) 234 Cal. App. 4th 524, 533.)
Plaintiffs failed to provide any admissible evidence
showing discriminatory animus by the Defendants. The
declarations attesting to Okorie’s character and his
30
dedication as a teacher are, as the trial court correctly
concluded, irrelevant—they do not provide any evidence
regarding, let alone substantiating, Defendants’ alleged
misconduct. The only evidence proffered by Plaintiffs to
support their claims against Defendants is Okorie’s
uncorroborated and self-serving declaration. The extent of
Plaintiffs’ evidentiary failure is puzzling in light of the
complaint’s allegations. For example, Plaintiffs allege that
there were witnesses to much of Hughes’s misconduct prior
to the molestation investigation—other teachers, school staff
and administrators, and students. However, Plaintiffs failed
to submit a single declaration from any of these potential
witnesses.
In short, Okorie’s subjective beliefs regarding
Defendants’ conduct are not sufficient to meet Plaintiffs’
“ ‘summary-judgment-like’ ” evidentiary burden. (Baral,
supra, 1 Cal.5th at p. 384; see King v. United Parcel Service,
Inc. (2007) 152 Cal. App. 4th 426, 433 [“uncorroborated and
self-serving declarations” insufficient].) Plaintiffs’
evidentiary failure is especially conspicuous in light of the
very reasonable, nondiscriminatory justifications that the
Defendants proffered for their challenged conduct.
Accordingly, we hold that Plaintiffs failed to demonstrate a
likelihood of prevailing on their race/national origin
discrimination claim.
31
B. PLAINTIFFS’ FAILURE TO PREVENT DISCRIMINATION
CLAIM
A failure to prevent discrimination claim is a
derivative claim—a plaintiff cannot maintain a cause of
action for failure to investigate or prevent harassment
unless there was actionable harassment. (See Trujillo v.
North County Transit Dist. (1998) 63 Cal. App. 4th 280, 289;
Dickson v. Burke Williams, Inc. (2015) 234 Cal. App. 4th 1307,
1313–1314.) Plaintiffs’ failure to provide the necessary
evidence to support their discrimination claim necessarily
dooms their failure to prevent discrimination claim.
C. PLAINTIFFS’ INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
A claim for intentional infliction of emotional distress
has the following elements: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) severe emotional distress suffered by the
plaintiff; and (3) actual and proximate causation. (Hughes v.
Pair (2009) 46 Cal. 4th 1035, 1050.) A defendant's conduct is
extreme and outrageous when it is “so ‘ “ ‘extreme as to
exceed all bounds of that usually tolerated in a civilized
community.’ ” ’ ” (Id. at p. 1051.) “ ‘[M]ere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities’ ” do not constitute extreme and outrageous
conduct. (Cochran v. Cochran (1998) 65 Cal. App. 4th 488,
496, italics omitted.) Instead “ ‘[t]he requirements [for
establishing actionable conduct] are rigorous, and difficult to
32
satisfy . . . .’ [Citations.] [¶] On the spectrum of offensive
conduct, outrageous conduct is that which is the most
extremely offensive. Depending on the idiosyncrasies of the
plaintiff, offensive conduct which falls along the remainder
of the spectrum may be irritating, insulting or even
distressing but it is not actionable and must simply be
endured without resort to legal redress.” (Yurick v. Superior
Court (1989) 209 Cal. App. 3d 1116, 1129.)
On appeal, Plaintiffs contend that they established a
probability of success on their emotional distress claim based
on the evidence supporting their race and national origin
discrimination claim. However, as discussed above,
Plaintiffs failed to provide any evidence of Defendants’
discriminatory animus besides Okorie’s self-serving
declaration. By extension, Plaintiffs have similarly failed to
show any evidence of intentional conduct by Defendants that
was designed to inflict emotional distress. Accordingly, we
hold that Plaintiffs failed to demonstrate a likelihood of
prevailing on their emotional distress claim.
D. PLAINTIFFS’ RACIAL AND NATIONAL ORIGIN
HARASSMENT CLAIM
In order to prevail on their harassment claim,
Plaintiffs were required to show that the actions complained
of were motivated by a discriminatory purpose against
Okorie because of his protected status. (Collins v. Hertz
Corp. (2006) 144 Cal. App. 4th 64, 76.) Plaintiffs’ harassment
claim does not survive for the same reasons that their
discrimination claim fails—the absence of any admissible
33
evidence showing a discriminatory animus or purpose on the
part of the Defendants.
E. PLAINTIFFS’ FEDERAL CIVIL RIGHTS CLAIM
With regard to Plaintiffs’ federal civil rights claim,
which was based on the execution of the October 2014 search
warrant, Plaintiffs concede in their appellate briefing that
this claim was fatally flawed as alleged because it was
brought against LAUSD only, which is immune under the
11th Amendment of the federal constitution. (See, e.g.,
Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83
Cal. App. 4th 1098, 1115 [California school district as “arm of
the state” not subject to liability under § 1983 claim];
McAllister v. Los Angeles Unified School Dist. (2013) 216
Cal,.App.4th 1198, 1207 [same]; see also Belanger v. Madera
Unified School Dist. (9th Cir. 1992) 963 F.2d 248, 254 (9th
Cir. 1992); Aldana v. Los Angeles Unified School Dist.
(C.D.Cal., Nov. 3, 2011, No. CV 10-6000-DOC SP) 2011
U.S.Dist. Lexis 138445, at pp. *9, *13.) Despite this
concession, Plaintiffs argued that the trial court erred by
striking that cause of action because they would have been
able to name individual defendants with regard to the
execution of the subpoena in an amended complaint
following discovery. Plaintiffs’ argument is without merit.
Whether Plaintiffs could have filed an amended
complaint that could have successfully identified individual
defendants against whom the federal civil rights claim could
have been asserted is a question that we cannot consider.
34
Under the anti-SLAPP analysis, we, like the trial court,
must take the challenged pleading as we find it.
The anti-SLAPP statute was enacted to purge
meritless lawsuits and to do so at an early stage of the
litigation. (§ 425.16, subd. (a); Sylmar Air Conditioning v.
Pueblo Contracting Services., Inc. (2004) 122 Cal. App. 4th
1049, 1055–1056.) Accordingly, if a trial court grants an
anti-SLAPP motion, it results in a judgment striking the
complaint or cause of action. Importantly, if the motion is
granted, the court may not grant leave to amend to allege
new facts demonstrating the complaint is not subject to the
anti-SLAPP statute. (Simmons v. Allstate Ins. Co. (2001) 92
Cal. App. 4th 1068, 1073; Schaffer v. City & County of San
Francisco (2008) 168 Cal. App. 4th 992, 1005.)
Indeed, a trial court cannot even allow an amendment
after a defendant has met its burden with respect to the first
prong (see Mobile Medical Services etc. v. Rajaram (2015)
241 Cal. App. 4th 164, 171 (Mobile Medical)) or before the
hearing on the motion (see Salma v. Capon (2008) 161
Cal. App. 4th 1275, 1280), because such action would
undermine the purpose of the statute—that is, providing a
“quick and inexpensive method of unmasking and dismissing
[meritless] suits.” (Simmons v. Allstate Ins. Co., supra, 92
Cal.App.4th at p. 1074.)
“Allowing an amendment ‘once the court finds the
[defendant’s] prima facie showing has been met would
completely undermine the statute by providing the pleader a
ready escape from section 425.16’s quick dismissal remedy.
35
Instead of having to show a probability of success on the
merits, the SLAPP plaintiff would be able to go back to the
drawing board with a second opportunity to disguise the
vexatious nature of the suit through more artful pleading.’ ”
(Mobile Medical, supra, 241 Cal.App.4th at p. 171.)
IV. Plaintiffs forfeited their argument about the trial
court’s evidentiary rulings
Plaintiffs also contend that the trial court’s rulings on
their evidentiary objections to the Metcalf declaration were
“in error.” (Capitalization omitted.) Plaintiffs’ argument,
such as it is, suffers from two fatal procedural defects—it
fails to identify which evidentiary rulings were purportedly
made in error and fails to offer any legal argument in
support of the claims of error. Plaintiffs simply request that
we “review the evidentiary rulings.”
A touchstone legal principle governing appeals is that
“the trial court’s judgment is presumed to be correct, and the
appellant has the burden to prove otherwise by presenting
legal authority on each point made and factual analysis,
supported by appropriate citations to the material facts in
the record; otherwise, the argument may be deemed
forfeited. [Citations.] [¶] It is the appellant’s responsibility
to support claims of error with citation and authority; this
court is not obligated to perform that function on the
appellant’s behalf.” (Keyes v. Bowen (2010) 189 Cal. App. 4th
647, 655–656.) “[A]n appellant must present argument and
authorities on each point to which error is asserted or else
the issue is waived.” (Kurinij v. Hanna & Morton (1997) 55
36
Cal. App. 4th 853, 867.) Matters not properly raised or that
are lacking in adequate legal discussion will be deemed
forfeited. (Keyes, at pp. 655–656.)
In other words, it is not this court’s role to construct
theories or arguments that would undermine the judgment
and defeat the presumption of correctness. Rather, an
appellant is required to present a cognizable legal argument
in support of reversal of the judgment. “When an issue is
unsupported by pertinent or cognizable legal argument it
may be deemed abandoned and discussion by the reviewing
court is unnecessary.” (Landry v. Berryessa Union School
Dist. (1995) 39 Cal. App. 4th 691, 699–700.) “Issues do not
have a life of their own: if they are not raised or supported
by argument or citation to authority, [they are] waived.”
(Jones v. Superior Court (1994) 26 Cal. App. 4th 92, 99.)
Further, an appellant is required to explain the relevance of
facts cited in his or her brief. This court is not
“ ‘“obligate[d] . . . to cull the record for the benefit of the
appellant.” ’ ” (Bains v. Moores (2009) 172 Cal. App. 4th 445,
455.)
Plaintiffs have failed utterly to support their claim of
error with respect to the trial court’s evidentiary rulings on
the Metcalf declaration, thereby forfeiting their claim.
Accordingly, we decline to consider it.
37
DISPOSITION
The order is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
I concur:
CHANEY, J.
38
ROTHSCHILD, P. J., concurring and dissenting:
In its anti-SLAPP motion, the LAUSD asserted that
when, as here, the plaintiff alleges a cause of action that includes
allegations of activity that is protected under the anti-SLAPP
statute and activity that is not protected—a “mixed” cause
of action—the entire cause of action may be subject to the
anti-SLAPP statute. According to the LAUSD, the inquiry
regarding mixed causes of action is “whether the gravamen or
principal thrust of the claim is protected activity.” So long as
the “primary activity” alleged in a cause of action is protected,
the LAUSD argued, the cause of action was subject to the
anti-SLAPP statute.
The trial court acknowledged a split among the courts of
appeal regarding the anti-SLAPP analysis of mixed causes of
action, and agreed with the LAUSD’s gravamen theory and
analysis. Relying on our decision in Baral v. Schnitt (2015)
233 Cal. App. 4th 1423, revd. (2016) 1 Cal.5th 376, the trial court
explained that “the anti-SLAPP statute does not empower a trial
court to strike portions of a cause of action where allegations
of mixed conduct are alleged.”
While this appeal was pending, our Supreme Court
reversed our Baral decision (Baral v. Schnitt (2016) 1 Cal.5th
376, 397 (Baral)), and with it the trial court’s rationale in this
case. Although the anti-SLAPP statute refers to striking a “cause
of action,” the Supreme Court explained that, for purposes of the
anti-SLAPP statute, a cause of action is not determined by how
the plaintiff organized the pleading. (Id. at pp. 392-395.) Rather,
the phrase refers to “particular alleged acts giving rise to a claim
for relief.” (Id. at p. 395.) Thus, a pleaded count, though labeled
a “cause of action” in a complaint, may contain numerous claims
for relief, each defined by a particular act by the defendant.
In cases involving allegations of both protected and unprotected
activity, the anti-SLAPP statute applies to those claims arising
from protected activity and does not apply to claims arising from
unprotected activity, regardless of whether they are conjoined
under a single heading in the complaint.
After Baral, the so-called mixed cause of action is not a
useful designation now. The phrase previously had meaning only
because courts erroneously viewed a cause of action for purposes
of the anti-SLAPP statutes as framed by the form of the pleading,
and the plaintiff could organize different claims for relief under
a single “cause of action” in a complaint. Under Baral, however,
multiple claims within a pleaded cause of action are separated
according to their factual bases and individually analyzed as
protected or unprotected claims .
Because Baral has eliminated the mixed cause of action
problem by redefining a cause of action for purposes of the anti-
SLAPP statute, there is no point to ascertaining the gravamen
of a mixed cause of action; the “particular alleged acts giving rise
to a claim for relief” are either protected or not. Although, as
Baral pointed out, a court may need to determine whether factual
allegations are incidental to a claim that arises from protected or
unprotected activity, determining the gravamen has no place in
anti-SLAPP analysis. (See Sheley v. Harrop (2017) 9 Cal. App. 4th
1147, 1169 [“After Baral, when deciding whether claims based
on protected activity arise out of protected activity we do not
look for an overall or gestalt ‘primary thrust’ or ‘gravamen’ of the
complaint or even a cause of action as pleaded”].) Accordingly,
I disagree with the majority’s holding that “the principal
thrust/gravamen analysis remains a viable tool by which to
assess whether a plaintiff’s claim arises out of protected activity.”
(Maj. opn. ante, at p. 18.)
2
Here, the LAUSD, moved to strike the entire complaint
based on its characterizations of the gravamen of the pleaded
causes of action—an analysis the trial court adopted. Although
Okorie has alleged claims arising from protected activity, such
as claims arising from statements made in connection with the
school district’s investigation into molestation allegations, Okorie
has also alleged unprotected activity supporting at least some of
his claims. At a minimum, the LAUSD’s reassignment of Okorie
to his home and, later, to another facility known as “teacher
jail”—acts that allegedly constitute adverse employment actions
and support his claims for discrimination, harassment, and
retaliation—do not constitute protected activity. (See Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1068.) It was therefore error to strike the entire complaint.
Accordingly, I respectfully dissent.
ROTHSCHILD, P. J.
3