Filed 8/24/26 Escamilla v. San Marino Unified School Dist. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LEYDA ESCAMILLA, B343951
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24NNCV03078)
v.
SAN MARINO UNIFIED
SCHOOL DISTRICT et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William A. Crowfoot, Judge. Affirmed.
Dannis Woliver Kelley and Sue Ann Salmon Evans for
Defendants and Appellants.
Glazier Yee, Guy P. Glazier and Brian T. Clark for Plaintiff
and Respondent.
____________________
Plaintiff Leyda Escamilla brought this action against
defendants San Marino Unified School District, Linda de la
Torre, Jason Rose, and Benjamin Wolf (collectively, Defendants)
for allegedly retaliating against her after she disclosed a safety
concern about a coworker. Defendants appeal the trial court’s
order denying their Code of Civil Procedure section 425.161
special motion to strike the complaint. Because we agree with the
trial court, we affirm.
FACTUAL BACKGROUND
Escamilla is employed by the San Marino Unified School
District as a health services assistant at San Marino High
School.2 De la Torre is the superintendent of the district, and
Rose is the director of human resources. Wolf is the school
principal.
On August 29, 2023, Escamilla informed Wolf and another
supervisor that the school’s head football coach, Nate Turner, had
a history of violence, drug dealing, and felony arrests, and was
therefore a threat to the safety of students and employees.
According to Escamilla, she provided her supervisors with a
packet of documents substantiating her report about Turner’s
background at their request, and with Wolf’s approval, gave those
documents to the district’s school board vice president. Escamilla
also gave them to her union president. She wrote a letter to Rose
on September 1, 2023, documenting her concerns about Turner.
1 Undesignated statutory references are to the Code of Civil
Procedure.
2 This factual background is primarily drawn from the
allegations of the complaint. (See § 425.16, subd. (b)(2).)
2
Escamilla alleged Defendants “conspired to protect [the
district’s] decision to hire [Turner],” and “de la Torre, Rose, and
Wolf concocted a false narrative of [Escamilla’s] reporting and
conduct,” and engaged in a campaign of harassment and
retaliation against her. On August 29, 2023, Wolf wrote a letter
to Escamilla accusing her of “ ‘distributing’ ” the document packet
on campus, which Escamilla claims is false. The district launched
an investigation into Escamilla’s purported misconduct in
distributing the documents.
On October 16, 2023, Rose and Wolf allegedly “threatened
[Escamilla] with dismissal unless she agreed to retire at the end
of the school year following paid administrative leave,” and
threatened to “press charges against [her].” De la Torre approved
an October 30, 2023, letter written by Rose stating the
investigation into Escamilla was complete and supposedly
mischaracterizing the investigator’s findings.
On November 1, 2023, in a letter signed by Rose, the
district informed Escamilla of its intent to dismiss her from
employment based on her purported misconduct. Escamilla
denied the misconduct allegations and appeared at a hearing
about the notice of intent to dismiss. On November 15, 2023,
“Wolf sent [Escamilla] home from work indefinitely.” Wolf also
gave a letter written by Rose to Escamilla, allegedly “falsely
claiming [the district] was conducting an investigation into [her]
misconduct.” The district placed Escamilla on paid
administrative leave.
On December 11, 2023, the district, de la Torre, and Rose
sent Escamilla a “Final Notice of Intent to dismiss her from
[district] employment.” Escamilla responded in writing by
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denying the allegations. Escamilla alleges she was constructively
terminated from her employment after that date.
PROCEDURAL HISTORY
Escamilla filed her complaint in this action on July 23,
2024, alleging Defendants retaliated against her for making a
protected disclosure about Turner. (See Ed. Code, §§ 44110–
44114.) On September 30, 2024, Defendants moved to strike the
complaint pursuant to section 425.16–widely known as an “anti-
SLAPP motion.” (See Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1055.) They argued Escamilla’s claims were based on their
activity protected by the anti-SLAPP statute, and Escamilla
could not show she was likely to prevail on the merits. (See Code
Civ. Proc., § 425.16, subd. (b)(1).) That same day, Defendants also
filed a demurrer.
The trial court heard argument on the anti-SLAPP motion
on December 17, 2024, and denied it. The court concluded
Defendants had failed to show Escamilla’s claims were premised
upon their protected speech, rather than their disciplinary
decisions and allegedly retaliatory actions. Because Defendants
had not carried their burden on the first element of the anti-
SLAPP test, the court did not address whether Escamilla could
show a likelihood of prevailing on the merits.
Defendants timely appealed. (See § 904.1, subd. (a)(13);
Cal. Rules of Court, rule 8.104(a)(1)(B).)
DISCUSSION
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, italics
omitted (Baral); see also § 425.16, subd. (b)(1).) A court’s analysis
of an anti-SLAPP motion proceeds in two steps. (Baral, at p. 384.)
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“First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16.” (Ibid.) “[T]he
moving defendant bears the burden of establishing that the
challenged allegations or claims ‘aris[e] from’ protected activity in
which the defendant has engaged.” (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1061 (Park);
see also § 425.16, subd. (b)(1).)
The first step of that test is dispositive of this appeal. As we
explain, we agree with the trial court’s conclusion Defendants did
not show Escamilla’s claims arose from any of their protected
activity. Thus, we need not and do not consider the second step of
the anti-SLAPP analysis. (See Verceles v. Los Angeles Unified
School Dist. (2021) 63 Cal.App.5th 776, 792, fn. 8 (Verceles).)
I. A Defendant Must Make Two Showings at the First
Step of the Anti-SLAPP Analysis
The first step of the anti-SLAPP analysis itself requires the
defendant to make “two related showings.” (Wilson v. Cable News
Network, Inc. (2019) 7 Cal.5th 871, 887 (Wilson).) First,
“[c]omparing its statements and conduct against the [anti-
SLAPP] statute, it must demonstrate activity qualifying for
protection.” (Ibid.) The type of activity protected “include[s] a
specified range of statements, writings, and conduct in connection
with official proceedings and matters of public interest.” (Park,
supra, 2 Cal.5th at p. 1062; see also § 425.16, subd. (e).)
Second, “comparing that protected activity against the
complaint, [the defendant] must also demonstrate that the
activity supplies one or more elements of a plaintiff’s claims.”
(Wilson, supra, 7 Cal.5th at p. 887.) That is, the defendant must
show his “speech or petitioning activity itself is the wrong
complained of, and not just evidence of liability.” (Park, supra,
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2 Cal.5th at p. 1060.) The protected activity must be the
“ ‘conduct by which plaintiff claims to have been injured’ ” and
what “ ‘gives rise to [the defendant’s] asserted liability.’ ” (Id. at
p. 1063, italics omitted.) When evaluating a defendant’s showing
at this stage, a court “should consider the elements of the
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.” (Ibid.; see
also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1015 (Bonni) [“a claim is subject to an anti-SLAPP motion . . . if
its elements arise from protected activity”].)
We therefore reject Defendants’ assertion “the only thing
that a defendant needs to show” to prevail on an anti-SLAPP
motion “is that plaintiff’s lawsuit ‘arises from’ defendant’s
exercise of free speech or petition rights as defined in
section 425.16.” On the contrary, the statute applies to “cause[s]
of action . . . arising from” a defendant’s protected activity (id.,
subd. (b)(1)), which our Supreme Court has told us refers “only
[to] claims that are based on the [protected] conduct” (Baral,
supra, 1 Cal.5th at p. 382, italics added). We follow the Supreme
Court’s direction to consider the basis of a plaintiff’s “individual
claims,” rather than struggling “to settle intractable, almost
metaphysical problems about the ‘essence’ of a cause of action.”
(Bonni, supra, 11 Cal.5th at p. 1011.)
II. Defendants Failed to Show the Required Nexus
Between Any Protected Activity and Escamilla’s Claims
The trial court concluded Defendants failed to show the
required nexus between any protected activity and Escamilla’s
claims. We agree.
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A. Standard of Review
“We review de novo the grant or denial of an anti-SLAPP
motion.” (Park, supra, 2 Cal.5th at p. 1067.)
B. The Elements of Escamilla’s Claims
According to Defendants, “[t]he elements of [Escamilla’s]
retaliation claim are” those laid out in Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52, 69.
“ ‘ “[A retaliation] plaintiff must show that she engaged in
protected activity, that she was thereafter subjected to adverse
employment action by her employer, and there was a causal link
between the two.” ’ ” (Ibid.; see also id. at p. 63 [discussing
retaliation claims under Gov. Code, § 12940 and Lab. Code,
§ 1102.5]; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1042 (Yanowitz) [recognizing same test].) While Escamilla’s
complaint contains four causes of action, Defendants do not
distinguish among them for purposes of their anti-SLAPP
analysis, and neither do we. (See Park, supra, 2 Cal.5th at
p. 1068, fn. 3.)
Because it is Defendants’ burden to demonstrate
Escamilla’s claims are premised upon protected conduct, we
accept Defendants’ assertion those are the elements of
Escamilla’s claims.3 (See Wilson, supra, 7 Cal.5th at p. 887.)
3 We express no opinion whether retaliation under the
Education Code may differ from other retaliation causes of
action. (Cf. Bonni, supra, 11 Cal.5th at pp. 1015–1016, 1018–1019
[discussing retaliation claim under Health & Saf. Code,
§ 1278.5].)
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C. Defendants Did Not Show Any Alleged Adverse
Employment Actions Are Protected Activity
Our Supreme Court has clearly told us “for anti-SLAPP
purposes[,] retaliation claims arise from the adverse actions
allegedly taken, notwithstanding the plaintiff’s allegation[s] that
the actions were taken for an improper purpose.” (Wilson, supra,
7 Cal.5th at p. 892.) We must therefore carefully “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,” like activities evincing a
discriminatory or retaliatory animus on the part of the
defendant. (Park, supra, 2 Cal.5th at p. 1064; see id. at pp. 1065–
1066.) In that regard, it is a “relatively unusual case in which [a]
retaliation defendant” can meet his “first-step burden of showing
that [his] challenged actions qualify as protected activity.”
(Wilson, at p. 891.)
For purposes of a retaliation claim, an adverse employment
action “materially affect[s] the terms, conditions, or privileges of
employment” and is “more than [a] mere inconvenience[] or
insignificant change[] in job responsibilities.” (Yanowitz, supra,
36 Cal.4th at p. 1060.) The adverse employment actions
underlying Escamilla’s claims are premised upon Defendants’
conduct: e.g., personnel actions “including but not limited to
forced retirement, forced administrative leave, . . . dismissal,”
and “constructive[] terminat[ion].” (See Verceles, supra,
63 Cal.App.5th at pp. 780, 785–786 [paid suspension and
termination]; St. Myers v. Dignity Health (2019) 44 Cal.App.5th
301, 315 [constructive discharge]; Whitehall v. County of San
Bernardino (2017) 17 Cal.App.5th 352, 362 [administrative
leave].) Escamilla’s retaliation claims “depend on” proof of that
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alleged conduct, not on any of Defendants’ speech or other
communications. (Park, supra, 2 Cal.5th at p. 1068; see also ibid.
[“Communications disparaging [the plaintiff], without any
adverse employment action, would not support a claim for
employment discrimination, but an adverse employment action,
even without the prior communications, surely could.”].)
We recognize the complaint contains a variety of
allegations about Defendants’ oral and written statements in
connection with their investigation into Escamilla’s purported
misconduct. Defendants specifically identify the following
allegations of protected activity in their opening brief: (1) Wolf’s
August 29, 2023, “substantially false letter”; (2) “threat[s]” made
by Rose and Wolf during a mid-October 2023 meeting with
Escamilla; (3) Rose’s October 30, 2023, and November 1, 2023,
letters to Escamilla containing false assertions; (4) a letter given
to Escamilla on November 15, 2023, “plac[ing] [her] on
administrative leave” and allegedly containing false information;
and (5) a “Final Notice of Intent to dismiss [Escamilla] from
[district] employment,” delivered to her on December 11, 2023,
containing “false allegations.” Escamilla does not seriously
dispute those allegations concern statements made by various
Defendants, or that they are protected by section 425.16,
subdivision (e)(1) and (2).
For purposes of this appeal, we generally accept
Defendants’ assertion those particular allegations involve their
activity protected by section 425.16, subdivision (e)(1) and (2).4
4 Defendants now suggest their speech was also protected by
section 425.16, subdivision (e)(3) and (4) because Escamilla
requested official proceedings be held in an open, public session.
9
(See Laker v. Board of Trustees of California State University
(2019) 32 Cal.App.5th 745, 764–766 (Laker) [defamatory
statements made in the context of an investigation were
protected activity].) Nevertheless, Defendants have not
demonstrated the required nexus between those allegations and
Escamilla’s claims. (See Park, supra, 2 Cal.5th at p. 1060 [even
where a defendant shows he engaged in protected activity, he
must still show a nexus “between [the] challenged claim and [his]
protected activity”].) That is, they have not shown Escamilla
alleges she was injured by that protected activity. (See id. at
p. 1063.)
To be sure, Escamilla’s allegations about what Defendants
said or wrote may relate to Defendants’ allegedly illegal motives
and could help her ultimately prove her retaliation claims,5 but
We decline to consider that newly minted argument for the first
time on appeal. (See DiCola v. White Brothers Performance
Products, Inc. (2008) 158 Cal.App.4th 666, 676 [“ ‘An argument or
theory will . . . not be considered if it is raised for the first time on
appeal.’ ”].)
5 Defendants argue Escamilla cannot rely on their
statements to prove retaliation because they are privileged
communications under Civil Code section 47, subdivision (b).
(See Hagberg v. California Federal Bank (2004) 32 Cal.4th 350,
375 [§ 47, subd. (b) “operates to bar civil liability for any tort
claim based upon a privileged communication”].) We decline to
reach this issue, which Escamilla disputes, because we are not
concerned with the merits of Escamilla’s claims at this stage of
the anti-SLAPP analysis. (See Baral, supra, 1 Cal.5th at p. 396;
Navellier v. Sletten (2003) 106 Cal.App.4th 763, 768, 769–771
[the plaintiffs could not meet their second-step anti-SLAPP
burden because their cause of action was based on privileged
communications].)
10
that does not demonstrate the claims are based on those
allegations within the meaning of the anti-SLAPP statute. (See
Park, supra, 2 Cal.5th at p. 1068 [communications may be
evidence bearing upon a discrimination claim, but the claim does
not depend upon them].) Escamilla will ultimately rely on
essentially two types of allegations to make out retaliation:
“(1) that [Defendants] subjected [her] to an adverse employment
action or actions, and (2) that [Defendants] took these adverse
actions for . . . retaliatory reasons.” (Wilson, supra, 7 Cal.5th at
p. 885.) But “a plaintiff’s allegations of illicit motive” are not
“a bar to anti-SLAPP protection.” (Id. at p. 889.) Instead, in
considering an anti-SLAPP motion, we examine “the conduct of
defendants without relying on whatever improper motive the
plaintiff alleged.” (Wilson, at p. 888.) For purposes of a retaliation
claim, “[w]hat 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 . . . retaliatory
consideration.” (Park, at p. 1066.)
Defendants may have communicated some adverse
employment actions to Escamilla via oral or written statements,
but that does not transform the statements themselves into
adverse employment actions for purposes of Escamilla’s
retaliation claims. (See Park, supra, 2 Cal.5th at p. 1071 [courts
can “separate an entity’s decisions from the communications that
give rise to them”]; cf. Bonni, supra, 11 Cal.5th at p. 1023
[§ 425.16, subd. (e)(4) “does not extend protection to every bit of
conduct factually related to actual speech”].) That is, firing
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someone does not generally constitute protected speech,6 even if
effectuated by a supervisor saying: “You’re fired.” The same is
true of adverse employment actions short of termination.
Because Defendants fail to carry their burden of showing
Escamilla’s claims arose from their protected activity, their anti-
SLAPP motion was properly denied.
D. Defendants’ Other Arguments Do Not Affect
Our Conclusion
While the foregoing explains why the trial court was
correct, we briefly address some of Defendants’ remaining points.
First, we reject Defendants’ argument Escamilla’s
complaint inadequately pled she was subjected to an adverse
employment action. For example, they argue: she inadequately
pled she was investigated or placed on administrative leave in
retaliation for a protected disclosure under Education Code
section 44112, subdivision (e)(1) and (2); administrative leave is
not a cognizable adverse employment action; and Escamilla did
not adequately allege she was terminated.
Defendants’ demurrer, which the parties tell us remains
pending in the trial court, is not before us. Rather, we are
reviewing the denial of Defendants’ anti-SLAPP motion, and at
this stage, we are simply tasked with deciding whether
Escamilla’s “claims . . . are based on” Defendants’ protected
activities. (Baral, supra, 1 Cal.5th at p. 382; see also id. at p. 388
6 There may be exceptions. (See, e.g., Wilson, supra,
7 Cal.5th at p. 896 [“[T]he decision to hire or fire an employee
who is vested with ultimate authority to determine a news
organization’s message might well have a substantial effect on
the organization’s ability to speak as it chooses on matters of
public concern.”].)
12
[traditional purpose of an anti-SLAPP motion is “ ‘ “to reach
certain kinds of defects in a pleading that are not subject to
demurrer” ’ ”].) To make that decision, it is enough for us to
recognize Escamilla’s retaliation claims—meritorious or
otherwise7—are premised upon alleged adverse employment
actions such as “forced retirement, forced administrative leave,
and dismissal.” They are not based on speech or activity protected
by the anti-SLAPP statute.
Second, the parties dispute whether Escamilla adequately
pled Defendants’ decision to investigate her and their issuance of
notices informing her of their intent to dismiss her were adverse
employment actions. For purposes of this appeal, we take
Escamilla at her word she relies upon those as additional adverse
employment actions supporting her claims. (See Bonni, supra,
11 Cal.5th at p. 1017, fn. 5 [relying in part upon the plaintiff’s
opposition to the anti-SLAPP motion to determine basis of the
plaintiff’s claims].) Nevertheless, we do not agree with
Defendants’ argument those adverse employment actions are
protected by the anti-SLAPP statute.
As to the investigation, the decision to investigate
Escamilla is the operative adverse employment action. While
“statements and writings . . . made in connection with” an
internal investigation can be protected under section 425.16,
subdivision (e)(2), the decision to investigate and the overall
investigation are not. (Hansen v. Department of Corrections &
Rehabilitation (2008) 171 Cal.App.4th 1537, 1544 [oral and
written statements in connection with an internal investigation
7 We express no opinion on the merits of Escamilla’s claims
or the parties’ arguments on that score.
13
were protected]; see also Laker, supra, 32 Cal.App.5th at pp. 773–
774 [the plaintiff alleged the decision to investigate, not
statements made during the investigation, was retaliatory].)
As to the notices, Defendants’ decision to terminate
Escamilla’s employment is the operative adverse employment
action. Defendants may have used written words to communicate
that decision to Escamilla via the notices, but for the same
reasons we explained above, that does not transform the
termination decision itself into speech protected by the anti-
SLAPP statute. (See Park, supra, 2 Cal.5th at p. 1068 [that
“tenure decision may have been communicated orally or in
writing . . . does not convert [the plaintiff’s] suit to one arising
from such speech”].)
Defendants have not met their burden to show Escamilla’s
claims are premised upon any protected activity. We therefore
affirm the trial court’s denial of their anti-SLAPP motion.
DISPOSITION
The judgment is affirmed. Escamilla is entitled to costs on
appeal. (See Cal. Rules of Court, rule 8.278(a)(1)–(2).)
RICHARDSON, J.
WE CONCUR:
LUI, P. J.
CHAVEZ, J.
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