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

Filed 8/22/23 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, B318471
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 19STCV09932)
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Barbara M. Scheper, Judge. Affirmed.
Anthony J. Bejarano, Associate General Counsel,
Los Angeles Unified School District; Hurrell Cantrall, Thomas C.
Hurrell and Melinda Cantrall for Defendant and Appellant.
Wyatt Law and Andrew M. Wyatt for Plaintiff and
Respondent.
__________________________
In 2019 Junnie Verceles sued the Los Angeles Unified
School District for discrimination and retaliation in violation of
California’s Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12900 et seq.). After the trial court granted the District’s
special motion to strike the complaint, Verceles appealed. We
reversed the trial court, finding Verceles’s causes of action did not
arise from protected activity within the meaning of Code of Civil
Procedure section 425.16, subdivision (e).1 (See Verceles v.
Los Angeles Unified School District (2021) 63 Cal.App.5th 776(Verceles I).) On remand Verceles filed a second amended
complaint, which the District moved to strike pursuant to
section 425.16. Relying on our analysis in Verceles I, the trial
court denied the District’s motion; and the District appealed. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint, the First Motion To Strike and the First
Appeal
As set forth more fully in Verceles I, Verceles had been
employed by the District as a teacher since 1998. In 2015, after a
misconduct allegation was made against him, Verceles was
removed from his teaching duties and reassigned to the local
district office. He remained on paid suspension for three years
while the Department investigated the misconduct charges. In
March 2018 the District’s Board of Education voted to terminate
Verceles’s employment. Verceles requested a review hearing
before the Commission on Professional Competence (CPC) but
1 Statutory references are to this code unless otherwise
stated.
2
ultimately withdrew the request. A final dismissal notice was
issued to Verceles on December 3, 2018
In 2019 Verceles initiated this lawsuit, alleging age
discrimination, race and national origin discrimination and
retaliation. The discrimination claims were based on a disparate
impact theory: Verceles alleged his reassignment and suspension
were the result of the Department’s pattern and practice of
discriminating against employees based on age, race and national
origin. He also alleged the Department retaliated against him by
terminating his employment after he had filed a discrimination
complaint with the California Department of Fair Employment
and Housing.
The District moved to strike the complaint, arguing it was
based on acts in furtherance of its rights of petition and free
speech within the meaning of section 425.16. The trial court
agreed. On appeal we held the causes of action Verceles alleged
in his complaint did not arise from the District’s protected
activity within the meaning of section 425.16, subdivision (e)(2),
because Verceles’s claims were based on “decisions to reassign
him and terminate his employment rather than on any
communications made during the investigation or the
investigation as a whole.” (Verceles I, supra, 63 Cal.App.5th at
p. 786.) We also held the complaint was not based on protected
activity within the meaning of subdivision (e)(4) because the
District had “not identified any recognized constitutionally
protected right of free expression that a school district has in its
teacher assignment and hiring decisions.” (Id. at pp. 789-790.)
Nor had the District shown its actions were taken in furtherance
of a constitutional right to petition. (Id. at pp. 790-792.)
3
2. The Second Amended Complaint
On remand the trial court granted the District’s motion for
judgment on the pleadings and gave leave to Verceles to amend
his complaint. Verceles filed a first amended complaint and, on
October 12, 2021, a second amended complaint. The second
amended complaint contained largely the same factual
allegations as the initial complaint, but instead of alleging
discrimination based on disparate impact, it alleged age, race and
national origin discrimination based on disparate treatment.2
Specifically, Verceles alleged his suspension “adversely affected
the terms and conditions of Plaintiff’s employment on the basis
that Plaintiff was over the age of 40” and “on the basis that
Plaintiff was Filipino.” Verceles also included a new allegation
that the vice principal of his school “discriminated against
Plaintiff by going out of her way to investigate and take
disciplinary action against Plaintiff.”
3. The District’s Special Motion To Strike the Second
Amended Complaint
On November 3, 2021 the District moved to strike the
discrimination causes of action in the second amended complaint
pursuant to section 425.16. The District argued the second
amended complaint, unlike the original complaint, alleged the
investigation itself was undertaken for a discriminatory purpose.
Thus, according to the District, our reasoning in Verceles I was
not controlling, and the District’s investigation of misconduct
allegations constituted protected activity within the meaning of
section 425.16, subdivision (e)(2). The District also revived its
2 The retaliation claim, which is not at issue on this appeal,
remained substantially unchanged.
4
argument, rejected in Verceles I, that any act in preparation for
or necessary to a potential CPC hearing constituted activity in
furtherance of its right to petition and was therefore protected
under section 425.16, subdivision (e)(4). To that end, the District
submitted declarations from four attorneys and investigators
explaining the considerations underlying its misconduct
investigations and the requirements for teacher dismissals,
including the statutory procedures for CPC hearings.
In his opposition Verceles did not dispute the second
amended complaint alleged the investigation itself was
discriminatory. However, he maintained the investigation did
not constitute protected speech for purposes of section 425.16
without the allegation that specific oral or written statements
caused him harm.
On December 7, 2021 the trial court denied the motion to
strike, finding the allegations in the complaint did not arise from
protected oral or written statements, but rather from the
suspension and inadequate investigation. Relying on our
analysis in Verceles I, the court also rejected the District’s
argument that any action related to a potential CPC hearing
constituted protected petitioning activity.
The District filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Section 425.16, commonly known as the anti-SLAPP
statute, makes available a special motion to strike certain
meritless claims early in the litigation: “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
5
public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1); see Rand Resources, LLC v. City of Carson
(2019) 6 Cal.5th 610, 619 [“[a] court may strike a cause of action
only if the cause of action (1) arises from an act in furtherance of
the right of petition or fee speech ‘in connection with a public
issue,’ and (2) the plaintiff has not established ‘a probability’ of
prevailing on the claims”].)
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 now 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
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of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord,
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009
(Bonni).)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1062-1063 (Park); accord, Bonni, supra, 11 Cal.5th at p. 1009.)
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, Bonni, at p. 1012 [“‘[A]ssertions that are “merely
incidental” or “collateral” are not subject to section 425.16.
[Citations.] Allegations of protected activity that merely provide
context, without supporting a claim for recovery, cannot be
stricken under the anti-SLAPP statute’”].) “‘[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, supra, 6 Cal.5th
at p. 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
7
elements and consequently form the basis for liability.’” (Wilson,
at p. 884; accord, Bonni, at p. 1009; Park, at p. 1063.)
We review de novo an order granting or denying a special
motion to strike under section 425.16 (Geiser v. Kuhns (2022)
13 Cal.5th 1238, 1250; Wilson, supra, 7 Cal.5th at p. 884),
considering the parties’ pleadings and affidavits describing the
facts on which liability or defenses are predicated. (§ 425.16,
subd. (b)(2).)
2. Verceles’s Discrimination Claims Do Not Arise from the
District’s Protected Activity Pursuant to Section 425.16,
Subdivision (e)(2)
In Verceles I the District argued its reassignment and
suspension of Verceles were protected activity because
“inextricably tied” to the investigation of his conduct, which was
an official proceeding within the meaning of section 425.16,
subdivision (e)(2). (Verceles I, supra, 63 Cal.App.5th at p. 785.)
As we recognized, “[I]n general, an investigation into a public
employee’s conduct is an official proceeding.” (Id. at p. 787.)
However, “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 written or oral statement
made in connection with the proceeding.” (Id. at p. 787.) We held
the activity from which Verceles’s claim arose—his reassignment
and suspension—did not constitute protected activity: “In the
absence of any oral or written statements from which Verceles’s
claims arise, the District’s decision[ ] to place Verceles on leave
. . . [is] not protected activity within the meaning of section
425.16, subdivision (e)(2), even if [that] decision[ ] [was] made in
8
conjunction with an official investigation. (See Park, supra, 2
Cal.5th at pp. 1069-1071; Laker v. Board of Trustees of California
State University [(2019)] 32 Cal.App.5th [745], 773.)” (Verceles I,
at p. 788.)
To the extent the claims in the second amended complaint
similarly arise from Verceles’s reassignment and suspension,
there is nothing in the pleading, the intervening case law or the
District’s argument that necessitates our reconsideration or
departure from our previous conclusion that those claims do not
arise from protected activity.3
The District argues Verceles’s discrimination claims now
also arise from the investigation itself, not just his reassignment
and suspension. That is correct. Verceles alleges the
investigation into his conduct was initiated for a discriminatory
purpose; therefore, the investigation itself is part of the wrongful
conduct underlying Verceles’s claims. However, Verceles does not
rely on any specific oral or written statements in asserting these
claims. Rather, they depend on the decision to undertake an
3 Verceles suggests we decline to consider this appeal on the
merits based on the law of the case doctrine. Because the
second amended complaint rests on a different theory of liability
than the original complaint and includes new allegations, the law
of the case doctrine does not apply. (See Newport Harbor Offices
& Marina, LLC v. Morris Cerullo World Evangelism (2018)
23 Cal.App.5th 28, 41 [prior appellate decision regarding motion
to strike complaint did not constitute law of the case in
subsequent appeal regarding motion to strike amended
complaint]; cf. Dickenson v. Cosby (2019) 37 Cal.App.5th 1138,
1154 [law of the case governed motion to strike amended
complaint where claims were not “meaningfully different” from
original complaint].)
9
investigation and potentially any decisions made regarding how
to conduct the investigation. Under these circumstances the
claims are not based on protected activity within the meaning of
section 425.16, subdivision (e)(2).
The District’s conclusory assertion that the decision to
investigate Verceles and the investigation as a whole are
protected activity fails to recognize that this theory has been
expressly rejected—not only by this court, but also by the
Supreme Court. In Park, supra, 2 Cal.5th 1057, the Supreme
Court rejected the argument that “every aspect of [official]
proceedings . . . is protected activity for anti-SLAPP purposes”
and reiterated that “a claim may be struck only if the speech or
petitioning activity itself is the wrong complained of.” (Id. at
pp. 1069, 1060; see also Bonni, supra, 11 Cal.5th at p. 1004
[holding that “statements made during and in connection with
peer review proceedings . . . qualify as protected activity” but
rejecting contention that “any claim arising from the peer review
process necessarily targets protected speech or petitioning
activity”]; Wilson, supra, 7 Cal.5th at p. 884.) The Park Court
further cautioned that the failure to distinguish between speech
and conduct would interfere with “attempts to enforce the state’s
antidiscrimination public policy. ‘Any employer that initiates an
investigation of an employee, whether for lawful or unlawful
motives, would be at liberty to claim that its conduct was
protected and thereby shift the burden of proof to the employee
who, without the benefit of discovery and with the threat of
attorney fees looming, would be obligated to demonstrate the
likelihood of prevailing on the merits.’” (Park, at p. 1067.)
Our colleagues in the Sixth District came to the same
conclusion in Laker v. Board of Trustees of California State
10
University, supra, 32 Cal.App.5th 745 (Laker).4 In that case the
plaintiff alleged his employer had retaliated against him by
making defamatory statements about him and by initiating
three investigations into his conduct. The court distinguished
between the defamatory statements (specific identified
statements made orally and in writing by particular individuals),
which it found were protected by section 425.16, and the pursuit
of the investigations, which it found were not protected. The
court emphasized that the plaintiff’s allegations were based on
the employer’s “decision to pursue the investigations—rather
than any particular statement made in the course of that
investigation.” (Laker, at p. 774.) Accordingly, because the
allegations were based on “the burden of three meritless
investigations” rather than on “speech . . . by itself,” the court
held the claims did not arise from protected activity. (Id. at
p. 773.)
In support of its position the investigation itself is protected
activity, the District primarily relies on Jeffra v. California State
Lottery (2019) 39 Cal.App.5th 471. We addressed this argument
in Verceles I: “In Jeffra the plaintiff sued his public employer for
retaliation after he had been investigated and placed on
administrative leave. . . . [T]he 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
employment action was the investigation itself, which was
protected activity within the meaning of section 425.16,
4 Despite our citation to Laker in Verceles I for the same
proposition discussed here, the District does not address it in its
briefing.
11
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.” (Verceles I, supra,
63 Cal.App.5th at pp. 787-788.) Curiously, the District does not
address this last sentence. Nor has it given any reason our prior
conclusion should not apply equally here.5
In sum, in the absence of any specified oral or written
statements from which Verceles’s claims arise, the District’s
decision to investigate him was not protected activity within the
meaning of section 425.16, subdivision (e)(2). (See Park, supra,2 Cal.5th at pp. 1069-1071; Laker, supra, 32 Cal.App.5th at
p. 773.)
5 In support of its argument the District also relies on
Verceles’s allegation that the “conduct and communication of
Defendants, and each of them, substantially interfered with the
employment of Plaintiff and created an intimidating, hostile and
offensive environment.” This allegation does not transform the
complaint to one based on protected activity. Such a general
allegation regarding unspecified communications does nothing
more than reiterate that the alleged harm was caused by the
conduct of the investigation as a whole. (See Bonni, supra,
11 Cal.5th at pp. 1023-1024 [defendant failed to establish
protected status of “handful of miscellaneous retaliatory conduct
not explicitly tied to any specific event or action”].)
12
3. Verceles’s Discrimination Claims Do Not Arise from the
District’s Protected Activity Pursuant to Section 425.16,
Subdivision (e)(4)
The District argues, as it did in Verceles I, that Verceles’s
claims are based on “conduct in furtherance of the exercise of the
constitutional right of petition . . . in connection with a public
issue or an issue of public interest.” (§ 425.16, subd. (e)(4).) The
District maintains that its participation and preparation for the
CPC hearing, at which it must file a formal “accusation”
requesting the dismissal of the employee and at which it bears
the burden to show dismissal is warranted, constitute conduct in
furtherance of its right to petition. The District further contends
its investigation into Verceles’s conduct was essential for it to
discover the facts necessary to make its arguments at the
potential CPC hearing and that Verceles’s suspension pending
the outcome of the investigation ensured he was not able to
interfere with the investigation or intimidate witnesses.
Accordingly, the District argues, those actions were in
furtherance of its ability to petition on matters of public concern.
As we explained in Verceles I, Education Code
section 44934, subdivision (b), provides the governing board of a
school district may vote to dismiss an employee under certain
circumstances, at which point the employee can demand a
hearing before the CPC. If the employee does not demand a
hearing within 30 days, the dismissal becomes final. Given that
it is the teacher’s choice whether to initiate a CPC hearing to
challenge the board’s decision and the process is created and
governed by statute, rather than the result of a constitutional
right, the District’s preparation for, and participation in, the
hearing simply does not constitute conduct in furtherance of the
District’s own right to petition.
13
This conclusion is supported by the Supreme Court’s
decision in Bonni. In that case, the Court explained that conduct
in furtherance of the right of petition or free speech, for purposes
of section 425.16, subdivision (e)(4), depended on whether the
conduct “advances the [defendants’] ‘ability to speak [or petition]
on matter of public concern.’” (Bonni, supra, 11 Cal.5th at
p. 1022.) The plaintiff in Bonni was a physician who alleged his
employers, two hospitals, had retaliated against him by
suspending, and ultimately terminating, his staff privileges. The
hospital defendants made arguments similar to those the District
presents here—that “disciplining Bonni triggered a peer review
hearing, an official proceeding during which the Hospitals’
medical executive committee petitioned in support of its action.”
(Id. at p. 1022.) The Court declined to find any action that
required the hospitals to convene a review hearing—an official
proceeding within the meaning of section 425.16—necessarily
affected the employers’ constitutional rights. The Court stated
that the suspensions’ prompting of the hearing “does not mean
the suspensions advanced the Hospitals’ ability to speak or to
petition on matters of public concern in any substantial way. . . .
Section 425.16, subdivision (e)(4) does not extend protection to
every bit of conduct factually related to actual speech or
petitioning.” (Bonni, at pp. 1022-1023.) The Court further noted
that “[t]he Hospitals’ briefing suggests that the primary impact a
summary suspension has on peer review is that it triggers certain
hearing rights for the disciplined physician, which the physician
can choose to exercise or waive. But the Hospitals provide no
explanation why conduct that empowered Bonni to exercise
hearing rights furthered their own right to petition.” (Id. at
p. 1023, fn. 11.)
14
The same is true here. The District has not established
that its investigation, which ultimately allowed Verceles to
exercise his statutory right to a hearing, implicated the District’s
constitutional petitioning rights.
DISPOSITION
The order denying the District’s special motion to strike is
affirmed. Verceles is to recover his costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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