Gallant v. City of
Filed 6/20/13 Gallant v. City of Alameda CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
ANN MARIE
GALLANT,
Plaintiff and Respondent,
v.
CITY OF ALAMEDA,
Defendant and Appellant.
A133777
(Alameda County
Super. Ct.
No. RG11590505)
Defendant
City of Alameda
(the city) appeals from an order denying its special
plaintiff Ann Marie Gallant as a strategic lawsuit against public participation
pursuant to Code of Civil Procedure,
section 425.16 (hereafter referred to as SLAPP statute or anti-SLAPP
statute). The trial court determined
that the complaint was not based on petitioning
or free speech activity protected by section 425.16. We disagree, and accordingly, we reverse and
remand for further proceedings.
FACTUAL AND
PROCEDURAL BACKGROUND
Plaintiff
Ann Marie Gallant was formerly employed as interim city manager, pursuant to a
written employment contract, for a minimum period of 24 months, commencing April 1, 2009 and ending March 31, 2011. At a December 28,
2010, public meeting, the city council voted to “terminateâ€
Gallant’s contract.
Under
the complaint’s causes of actions, designated “Labor Code § 1102.5(b)
Labor Code § 1102.5(c),
name="_ftnref3" title="">[3]â€
“declaratory relief,†and “breach of contract,†Gallant alleged her employment
had been “terminated†because (1) she refused to participate in illegal
activity; and (2) she disclosed information pertaining to illegal activity
to government agencies regarding a city council member. She also alleged the reported city council
member had influenced two other council members to vote to terminate her
contract. Gallant also alleged the city
council’s vote to terminate her contract violated section 2-2 of the city
charter
and paragraph two of the employment contract.
properly terminated, she alleged the city was obligated to continue to pay her
but it had stopped paying her on or about April 1, 2011.
Gallant sought a declaration to resolve the parties’ “actual
controversy†relating to the validity of the city council’s vote to terminate
her contract on December 28, 2010,
and damages for loss of pay and benefits, continuing to accrue until 90 days
after the city complied with the termination terms of the employment contract.
After
filing its answer, the city filed a special
was opposed by Gallant. After a hearing,
the trial court issued a written order denying the city’s special motion to strike
the complaint. The court explained:
“Plaintiff’s claims arise from the City of Alameda’s
termination of her employment contract rather than any petitioning or free
speech activity protected by the anti-SLAPP statute. Because the Court finds that the complaint
does not arise from protected activity within the meaning of [section] 425.16,
the Court need not reach the issue of whether plaintiff has made a sufficient
showing on the merits of her claims.â€
The city now timely appeals.
DISCUSSION
Section
425.16, subdivision (b), states, in pertinent part: “(1) A cause of action against a person
arising from any act of that person in furtherance of the person’s right of
petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.†“[T]he word ‘person’ as used in
section 425.16, subdivision (b) must be read to include a governmental
entity.†(Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114.)
We
review the trial court’s order denying the city’s special motion to strike
under section 425.16 de novo. (
325.) “[A] special motion to strike
involves a two-part inquiry. First, the
defendant must make a prima facie showing that a cause of action arises from an
act in furtherance of his or her constitutional rights of petition or free
speech in connection with a public issue.
[Citations.] If such a showing
has been made, the burden shifts to the plaintiff to demonstrate a probability
of prevailing on the claim.
[Citation.] If the plaintiff
fails to carry that burden, the cause of action is ‘subject to be stricken
under the statute.’ †(
275, 280-281.)
The
SLAPP statute’s protected activity is broadly defined to include “(1) any
written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, (2)
any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public
interest.†(§ 425.16,
subd. (e).) “[A] defendant moving
to strike a cause of action arising from a statement made before, or in
connection with an issue under consideration by, a legally authorized official
proceeding need not separately
demonstrate that the statement concerned an issue of public significance.†(Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123,
fn. omitted.) Instead, “the statutory
remedy afforded by section 425.16 extends to statements and writings of
governmental entities and public officials on matters of public interest and
concern that would fall within the scope of the statute if such statements were
made by a private individual or entity.â€
(Vargas v. City of Salinas
(2009) 46 Cal.4th 1, 17.)
In
analyzing the first prong of the section 425.16 analysis, “courts must be
careful to distinguish allegations of conduct on which liability is to be based
from allegations of motives for such conduct.
‘[C]auses of action do not arise from motives; they arise from
acts.’ [Citation.] ‘The statute applies to claims “based on†or
“arising from†statements or writings made in connection with protected speech
or petitioning activities, regardless of any motive the defendant may have had
in undertaking its activities, or the motive the plaintiff may be ascribing to
the defendant’s activities.’ †(
(2012) 211 Cal.App.4th 809, 823.) Also,
“[t]he anti-SLAPP statute’s definitional focus is not the form of the
plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability – and
whether that activity constituted protected speech or petitioning.†(Navellier
v. Sletten (2002) 29 Cal.4th 82, 92 (Navellier).) Thus, regardless of the labeled causes of
action, Gallant “cannot avoid operation of the anti-SLAPP statute by attempting
through artifices of pleading, to characterize an action as a garden variety
tort or contract claim when in fact the claim is predicated on protected speech
or petitioning activity.†(
1271-1272.)
We
agree with the city that the overarching premise of all of Gallant’s causes of
action is the termination of her employment contract, which is protected
conduct under the anti-SLAPP statute as either a “written or oral statement or
writing made before a legislative . . . proceeding, or any other
official proceeding authorized by law,†or a “written or oral statement or
writing made in connection with an issue under consideration or review by a
legislative . . . body, or any other official proceeding authorized by
law.†(§ 425.16, subds. (e)(1)
& (2).) As Gallant concedes in her
responsive brief, her retaliation and breach of contract claims, and request
for declaratory relief, “would have no basis in the absence of†the city’s
alleged actions taken in connection with the termination of her employment
(Tuszynska v. Cunningham
(2011) 199 Cal.App.4th 257, 270 (Tuszynska);
cf. Martin v. Inland Empire Utilities
Agency (2011) 198 Cal.App.4th 611, 624 (Martin)
[court concluded gravamen of plaintiff’s complaint was one of racial and
retaliatory discrimination, not an attack on agency’s chief executive officer
or evaluations of plaintiff's performance as an employee]; Department of Fair Employment & Housing v. 1105 Alta Loma Road
Apartments, LLC (2007) 154 Cal.App.4th 1273, 1284 [court concluded gravamen
of complaint was discrimination, not exercise of defendant’s protected
speech].) Thus, because the city’s
decision to terminate Gallant’s employment constitutes “the gravamen, principal
thrust, and core injury-producing conduct underlying [Gallant’s]
. . . claims†(Tuszynska, supra,
at p. 270), the lawsuit “falls squarely within the ambit of the anti-SLAPP
statute’s ‘arising from’ prong†(Navellier,
supra, 29 Cal.4th at p. 90).
Gallant’s
reliance on McConnell v. Innovative
Artists Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169, and
Cal.App.4th 154, is misplaced as neither case concerns a municipality’s
protected activity as defined in section 425.16, subdivisions (e)(1) and
(e)(2).
statement or writing firing an employee is protected First Amendment activityâ€
(175 Cal.App.4th at p. 180), misconstrues the issue before us. “[T]he salient question in this case is not
whether [defendant’s] acts are protected as a
of the United States Constitution in some other context, but whether they fall
within the statutory definition of conduct that the Legislature deemed
appropriate for anti-SLAPP motions.†(
(2008) 168 Cal.App.4th 992, 1001 (Schaffer).) “The moving defendant’s burden is to
demonstrate that the act or acts of which the plaintiff complains were taken
‘in furtherance of the [defendant]’s right of petition or free speech under the
United States or California Constitution in connection with a public issue,’
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (
added.)
We
also see no merit to Gallant’s argument that the anti-SLAPP statue has not been
applied to wrongful termination claims.
“ ‘There is simply no authority for creating a categorical
exception [from the anti-SLAPP law] for any particular type of claim
. . . .’ †(
supra, 211 Cal.App.4th at p. 823.)
“ ‘ “Considering the purpose of the [anti-SLAPP] provision,
expressly stated, the nature or form of the action is not what is critical but
rather that it is against a person who has exercised certain rightsâ€
[citation]. “The Legislature recognized
that ‘all kinds of claims could achieve the objective of a SLAPP suit—to
interfere with and burden the defendant’s exercise of his or her
rights.’ †’ [Citation.] ‘Nothing in the statue itself categorically
excludes any particular type of action from its operation, and no court has the
“ ‘power to rewrite the statute so as to make it conform to a presumed
intention which is not expressed.’ †’ [Citation.]
Given these pronouncements, and the Legislature’s express reminder that
anti-SLAPP motions should be ‘construed broadly’ (§ 425.16, subd. (a)), we
do not find room to except claims involving [wrongful termination] from the
reach of the statute.†(
110 Cal.App.4th 82, 91.)
In
sum, we conclude the city met its burden of showing that the complaint’s causes
of action were based on “constitutional free speech and petitioning activity as
defined in the anti-SLAPP statute[],â€
and “arose from activity protected by the
anti-SLAPP statute.†(
italics added.) Whether the city’s
conduct “was wrongful†is a matter Gallant must “support in the context of the
discharge of [her] burden to provide a prima facie showing of the merits of
[her causes of action].†(Paul for
Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on other
grounds in Equilon Enterprises, supra,
29 Cal.4th at p. 68, fn. 5).
The
parties ask us to address whether Gallant met the second prong of the section
426.15 analysis, namely, whether she met her burden of establishing a
reasonable probability of prevailing on her claims by producing “evidence that
would be admissible at trial.†(
Fitzgibbons (2006) 140 Cal.App.4th 515, 527.) However, the trial court did not rule on the
city’s numerous written objections challenging Gallant’s proffered evidence,
the appellate record does not include Gallant’s written responses, if any, to
the city’s evidentiary objections, and she has not specifically addressed the
objections in her responsive brief.
“Rulings on the evidentiary objections are necessary before the trial
court or this court can determine whether [Gallant] has presented admissible
evidence that demonstrates a probability of prevailing on the merits of her
claims. . . .
‘ “Trial courts have a duty to rule on evidentiary
objections.†[Citation.] When that duty is not performed, appellate
courts are left with the nebulous task of determining whether the ruling that
was purportedly made was within the authority and discretion of the trial court
and was correct.’ †(
conclude it is more appropriate to remand the matter to the trial court so that
it may rule on the outstanding evidentiary and substantive issues in the first
instance. (Birkner v. Lam, supra, 156 Cal.App.4th at p. 286.)
The
November 10, 2011, order denying defendant’s special motion to strike is
reversed. The matter is remanded to the
trial court for further proceedings consistent with this opinion. The parties shall bear their respective costs
on appeal.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] All further unspecified statutory
references are to the Code of Civil Procedure.
(b), reads: “An employer may not
retaliate against an employee for disclosing information to a government or law
enforcement agency, where the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a violation
or noncompliance with a state or federal rule or regulation.â€
