Filed 8/6/26 Gutierrez v. City of Imperial CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LAURA GUTIERREZ, D086234
Plaintiff and Respondent,
(Super. Ct. No. ECU003168)
v.
CITY OF IMPERIAL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County,
Jeffrey B. Jones, Judge. Affirmed.
Kahana & Feld, Kevin L. Borgen and Donald L. Hall III for Defendant
and Appellant.
Rosenberg Law and Alexander Rosenberg for Plaintiff and Respondent.
The City of Imperial (the City) appeals an order denying its special
motion to strike brought under the anti-SLAPP statute (Code Civ. Proc.,1
1 Unless otherwise indicated, all further statutory references are to the
Code of Civil Procedure. “ ‘SLAPP’ is an acronym for ‘strategic lawsuit
against public participation.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381,
fn. 1 (Baral).) The anti-SLAPP statute sets forth the standards and the
§ 425.16) in the lawsuit filed by Laura Gutierrez alleging that the City
wrongfully terminated her employment. We conclude that the trial court
properly determined that the special motion to strike lacked merit, and we
accordingly affirm the trial court’s order denying the motion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Gutierrez worked as the Administrative Services Director for the City.
In that role, Gutierrez was responsible for directing the operation of the
City’s finance department, including balancing the books at the end of each
month.
In late August 2022, an outside auditor brought to the attention of the
city manager, Dennis Morita, that Gutierrez had not taken action to reconcile
an entry for $326,000 of unallocated funds in the City’s accounting ledger. It
also came to Morita’s attention that, allegedly, Gutierrez had not taken
proper steps in response to a May 2022 warning letter from Caltrans. In that
letter, Caltrans stated that the City had not yet submitted a required audit
report needed to ensure the City’s continued receipt of public funds.
Morita put Gutierrez on paid administrative leave on September 6,
2022. Subsequently, on September 30, 2022, Morita issued a notice to
Gutierrez that he was recommending the City terminate her employment.
On October 28, 2022, after receiving a response from Gutierrez, Morita issued
a notice to Gutierrez terminating her employment. The reason for the
termination was as follows: “1. Flat refusal to follow a supervisor’s
instructions. Your failure to perform the basic and essential functions of your
position . . . amount to a refusal to follow your supervisor’s instructions. [¶]
procedure for striking “meritless claims arising from protected activity.”
(Id. at p. 384, italics omitted.)
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2. Violation of the laws of the State while on duty. . . . [Y]our failure to
perform your job violated laws, rules and/or regulations which carry
significant exposure and severe consequences to the City.”2
Gutierrez appealed her termination to the City’s Personnel
Commission, which upheld the termination on November 10, 2022. Gutierrez
then appealed to the City Council. Gutierrez asked the City Council for
“compensation” for “damages,” but not reinstatement, as she had found new
employment. On June 15, 2023, the City Council upheld the termination and
denied the request for compensation.
Gutierrez filed a lawsuit against the City on October 10, 2023. Her
complaint alleged three causes of action: (1) wrongful termination;
(2) violation of the California Public Records Act (Gov. Code, § 7920.000
et seq.); and (3) violation of the Ralph M. Brown Act (id., § 54950 et seq.).
The trial court granted judgment on the pleadings, with leave to amend only
for the wrongful termination cause of action.
Gutierrez’s first amended complaint (FAC), filed on October 7, 2024,
contained a single cause of action for wrongful termination. After a lengthy
section setting forth the relevant factual background, the FAC alleged that
the City had wrongfully terminated Gutierrez by violating provisions of the
personnel policy that allegedly governed Gutierrez’s employment.3
2 On November 2, 2022, the City Council took action on the unallocated
funds in its accounting ledger by ordering that they “be zeroed out” and that
such a fund should not be used in such a manner in the future except as
approved by the city manager. The City Council further ordered a complete
forensic review of the matter.
3 The FAC alleges that the policies governing Gutierrez’s employment
were contained in the Management Supervisory Professional Confidential
Bargaining Agreement and the City of Imperial 1984 Personnel Policies.
3
Specifically, the FAC alleged that the City did not follow the three-step
progressive disciplinary policy that Gutierrez contended was applicable. As
alleged in the FAC, under that policy the employee is (1) first given a verbal
and written warning with no penalty; (2) next given a written warning with a
suspension or other penalty; and (3) finally issued a written report resulting
in termination. The FAC identified several specific provisions in the
progressive discipline policy, and it alleged that the City failed to comply with
them.4
On December 10, 2024, the City filed a special motion to strike the FAC
under the anti-SLAPP statute. In the same notice of motion, supported by
the same memorandum of points and authorities, the City moved, in the
alternative, for judgment on the pleadings.
The trial court denied the special motion to strike. As it explained, the
cause of action for wrongful termination incorporated the 51 preceding
paragraphs of the complaint, which included “allegations of plainly protected
activity, such as instituting an investigation into the handling of public
funds . . . . However, these allegations would appear to be incidental and
collateral to [Gutierrez’s] claim of wrongful termination, which is based on
allegations that [the City] failed to follow certain required procedures in the
termination process. . . . [¶] It thus appears that [the City] has failed to meet
its burden as to the first ‘prong’ of the analysis – that of showing that the
4 Among other things, according to the FAC, the applicable personnel
policy allows the City to proceed directly to the third step when there has
been “(a) Flat refusal to follow a supervisor’s instructions,” and “(b) Violation
of the laws of the State while on duty such as intoxication, drugs, theft, etc.”
Although the City stated that it was terminating Gutierrez on both of those
grounds, the FAC alleges that at no time “did [Gutierrez] flat[ly] refuse to
follow any of her supervisor’s instructions, nor did she violate any State laws
while on duty to warrant an exception . . . , requiring the third step only.”
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claim is ‘based’ on protected activity. Fairly read, [Gutierrez’s] claim is based
on a failure to follow the required procedures.”
The trial court also denied the motion for judgment on the pleadings.
As it explained, the FAC stated a claim for wrongful termination based on
the allegation that Gutierrez was denied procedural due process when the
City failed to follow the applicable “ ‘progressive discipline’ ” policy.
The City appeals from the order denying the special motion to strike.5
II.
DISCUSSION
A. The Anti-SLAPP Statute
We begin by setting out the general principles applicable to special
motions to strike brought under the anti-SLAPP statute. “The anti-SLAPP
statute is ‘designed to protect defendants from meritless lawsuits that might
chill the exercise of their rights to speak and petition on matters of public
concern. [Citations.] To that end, the statute authorizes a special motion to
strike a claim “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).)’ [Citation.] [¶] Litigation of an anti-SLAPP motion involves a
two-step process. First, ‘the moving defendant bears the burden of
establishing that the challenged allegations or claims “aris[e] from” protected
5 The City acknowledges that an order denying a motion for judgment on
the pleadings is not appealable prior to a final judgment. However, the City
asks us to review that ruling as part of our evaluation of the merits of
Gutierrez’s lawsuit during the second step of our analysis of the special
motion to strike. (§ 425.16, subd. (b)(1).) Because we reach only the first step
in our analysis of the special motion to strike, we have no occasion to consider
the City’s request that we review the trial court’s order denying judgment on
the pleadings.
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activity in which the defendant has engaged.’ [Citation.] Second, for each
claim that does arise from protected activity, the plaintiff must show the
claim has ‘at least “minimal merit.” ’ [Citation.] If the plaintiff cannot make
this showing, the court will strike the claim.” (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1008–1009 (Bonni).) In ruling on a special
motion to strike, “the court shall consider the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense is
based.” (§ 425.16, subd. (b)(2).)
The anti-SLAPP statute identifies four categories of protected activity:
“(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)(1)–(4).)
“Analysis of an anti-SLAPP motion is not confined to evaluating
whether an entire cause of action, as pleaded by the plaintiff, arises from
protected activity or has merit. Instead, courts should analyze each claim for
relief—each act or set of acts supplying a basis for relief, of which there may
be several in a single pleaded cause of action—to determine whether the acts
are protected and, if so, whether the claim they give rise to has the requisite
degree of merit to survive the motion.” (Bonni, supra, 11 Cal.5th at p. 1010,
italics added.)
6
A trial court’s order denying a special motion to strike is subject to a
de novo standard of review. (Monster Energy Co. v. Schechter (2019)
7 Cal.5th 781, 788.) “ ‘[O]ur job is to review the trial court’s ruling, not its
reasoning.’ ” (Trinity Risk Management, LLC v. Simplified Labor Staffing
Solutions, Inc. (2021) 59 Cal.App.5th 995, 1002.)
B. The Wrongful Termination Cause of Action Does Not Arise From
Protected Activity
We begin with the first step in the anti-SLAPP analysis. “At this first
step, courts are to ‘consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently form the
basis for liability.’ [Citation.] The defendant’s burden is to identify what acts
each challenged claim rests on and to show how those acts are protected
under a statutorily defined category of protected activity.” (Bonni, supra,
11 Cal.5th at p. 1009.)
As we have noted, the FAC contains a single cause of action for
wrongful termination. According to the City, in that cause of action, “[t]he
FAC seeks relief based on protected communications and petitioning activity
of City personnel in relation to official City proceedings, including allegedly
accusing Gutierrez of fraud, initiating a fraud investigation, disciplinary
proceedings, and disciplinary appeal proceedings.” Based on these
allegations, the City takes the position that “the entire FAC should be
stricken pursuant to §425.16.”
In analyzing whether the City has met its burden to show that the
wrongful termination cause of action arises from protected activity, we will
first consider the FAC’s allegations describing an accusation of fraud against
Gutierrez and the initiation of a fraud investigation. We will then consider
the allegations concerning the proceedings that resulted in Guttierez’s
termination.
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1. The FAC’s Allegations That City Personnel Accused Her of Fraud
and Initiated an Investigation
With respect to the City’s contention that Gutierrez’s wrongful
termination claim is based on the purportedly protected activities of making
fraud accusations and conducting a fraud investigation by City personnel, the
City points to several allegations in the FAC. Specifically, in its “Factual
Background” section, the FAC alleges that when putting Gutierrez on
administrative leave, Morita and the assistant city manager falsely claimed
that Guttierrez committed fraud and stated that they were going to conduct
an investigation.6 Subsequently, the City Council authorized a complete
forensic review regarding the unallocated funds account. Further, as alleged
within the wrongful termination cause of action, when the Personnel
Committee reviewed Gutierrez’s appeal of her termination, it “was biased”
against her after “having been approached by her supervisors [Morita and
the assistant city manager] alleging, she had committed fraud.” (Italics
added.) As a result of that bias, Gutierrez alleges that the Personnel
6 Paragraph 28 states that “[City Manager] Dennis Morita and
[Assistant City Manager] Alexis Brown conspired and colluded to create a
false narrative that Gutierrez had committed fraud when Gutierrez informed
them that she was in the process of reconciling the Unallocated Fund . . .
ledger that had not been reconciled for several months.” (Capitalization
omitted, italics added.) Paragraph 30 states, “Instead of being allowed to
finish reconciling the ledger, on the morning of September 6, 2022, Gutierrez
was called into the office by . . . Morita and . . . Brown and informed that she
was being placed on paid administrative leave to conduct a fraud
investigation effective immediately.” (Capitalization omitted, italics added.)
Paragraph 35 states that “[t]he acts alleged in this Complaint by the agents
of [the City] to prevent Gutierrez from her top salary by accusing her of
fraud, placing her on administrative leave and terminating her employment
were all performed without merit in violation of” the allegedly applicable
personnel policies. (Capitalization omitted, italics added.)
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Committee did not conduct a proper review at the second step of the
progressive discipline process.7
The City argues that because the FAC alleges that Gutierrez’s
supervisors accused her of fraud and authorized an investigation, the
wrongful termination cause of action is based on protected “conduct in
furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an
issue of public interest” (§ 425.16, subd. (e)(4)) and on a protected “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” (id., subd. (e)(2)). As we will
explain, that argument fails because the wrongful termination cause of action
is not based on the allegation that Gutierrez’s supervisors accused her of
fraud and authorized an investigation.
“Assertions 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.” (Baral, supra, 1 Cal.5th at p. 394.) There is
a “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.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1064 (Park).) A court must therefore
7 In paragraph 60, after stating that the applicable personnel policy
provides that “the Personnel Committee will review all disciplinary action
taken from Step 2 against a city employee by a supervisor,” the FAC alleges
that “the Personnel Committee was biased after having been approached by
[Gutierrez’s] supervisors . . . Morita and . . . Brown alleging, she had
committed fraud,” and thus “did not objectively review all disciplinary action
taken from Step 2 against her.”
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“consider whether . . . allegations supply the elements of [the alleged] claim
or merely provide context.” (Bonni, supra, 11 Cal.5th at p. 1012.)
Here, the wrongful termination cause of action is based on the theory
that (1) a three-step progressive discipline policy applied to Gutierrez’s
employment, but (2) the City terminated Gutierrez without following that
policy. Establishing liability on that basis does not depend on the allegation
that Gutierrez’s supervisors accused her of fraud during the process of
terminating her employment or that the City instituted a forensic review. At
most, the discussion of the fraud accusation and subsequent investigation
provide context regarding the circumstances and timing of Gutierrez’s
termination. Therefore, to the extent the City premised its anti-SLAPP
motion on the FAC’s allegations that Gutierrez’s supervisors accused her of
fraud and authorized an investigation, the motion was without merit.
2. Allegations Regarding Conduct and Communications by the
City’s Decisionmakers During the Proceedings Related to
Gutierrez’s Termination
Next, we consider the City’s reliance on the FAC’s allegations that
describe the conduct and communications by City decisionmakers during the
proceedings to terminate Gutierrez’s employment.
First, the City points to the FAC’s descriptions of Morita’s “conduct and
communications in connection with disciplinary proceedings against
Gutierrez.” Specifically, during the process of terminating Gutierrez’s
employment, Morita expressed his view that Gutierrez’s conduct “warrant[ed]
immediate discharge instead of progressive discipline.” The City argues that
“[a]s distinct from the City’s termination itself, Morita’s conduct and
communications in connection with disciplinary proceedings against
Gutierrez are protected activities under §425.16(e)(1, 2 & 4).”
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Next, the City points to the FAC’s allegations about the involvement by
the members of the Personnel Committee and the City Council during
proceedings related both to the termination of Gutierrez’s employment and
the resolution of the unallocated funds account. According to the City, the
committee members’ and council members’ “involvement in hearing,
processing, and deciding these matters in City proceedings is protected
activity under §425.16(e)(1, 2 & 4) and the resolution proceedings at a City
Council meeting [concerning the unallocated funds] were also protected
under §425.16(e)(3).”
The City’s reliance on these allegations to support its anti-SLAPP
motion is unavailing because the City fails to distinguish between the City’s
act of terminating Gutierrez’s employment, on the one hand, and the activity
leading up to and implementing that decision, on the other. Case law
requires that we make a “distinction between a government entity’s decisions
and the individual speech or petitioning that may contribute to them.” (Park,
supra, 2 Cal.5th at p. 1071.) “[A] claim is not subject to a motion to strike
simply because it contests an action or decision that was arrived at following
speech or petitioning activity, or that was thereafter communicated by means
of speech or petitioning activity. Rather, 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.” (Id. at p. 1060.) “Government decisions are frequently ‘arrived
at after discussion and a vote at a public meeting.’ [Citation.] 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.’ ” (Id. at p. 1067.) As our Supreme Court observed, “none of the core
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purposes the Legislature sought to promote when enacting the anti-SLAPP
statute are furthered by ignoring the distinction between a government
entity’s decisions and the individual speech or petitioning that may
contribute to them.” (Id. at p. 1071.)
As an example of this distinction, in Park, a professor sued the
university, alleging that its decision to deny him tenure was based on
national origin discrimination. (Park, supra, 2 Cal.5th at p. 1061.) The
university argued that because the professor’s suit “arose from its decision to
deny him tenure and the numerous communications that led up to and
followed that decision, these communications were protected activities.”
(Ibid.) Our Supreme Court rejected that contention, explaining that “[t]he
elements of [the professor’s] claim . . . depend not on the grievance
proceeding, any statements, or any specific evaluations of him in the tenure
process, but only on the denial of tenure itself and whether the motive for
that action was impermissible. The tenure decision may have been
communicated orally or in writing, but that communication does not convert
[the professor’s] suit to one arising from such speech.” (Id. at p. 1068.)
The same analysis applies here. During the proceedings to terminate
Gutierrez’s employment, decisionmakers at the City made statements and
engaged in conduct that might qualify as protected activities. Further, the
FAC cites those activities as evidence that the City wrongfully terminated
Gutierrez. However, “the wrong complained of” by Gutierrez is the
termination itself, which is not a protected activity. (Park, supra, 2 Cal.5th
at p. 1060.) Accordingly, the wrongful termination claim does not arise from
protected activity. As the trial court properly concluded, the City failed to
meet its burden on the first step of the analysis required by section 425.16,
subdivision (b)(1).
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DISPOSITION
The order denying the City’s special motion to strike is affirmed.
Gutierrez shall recover her costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
DO, J.
BERMÚDEZ, J.
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