The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 KATHRYN KAILIKOLE, an individual, Case No.: 18-CV-02877-AJB-MSB
12 Plaintiff,
ORDER DENYING DEFENDANT’S
13 v. MOTION TO DISMISS PURSUANT
TO CAL. CODE CIV. PROC. § 425.16
14 PALOMAR COMMUNITY COLLEGE
DISTRICT, a governmental entity; and
15 (Doc. No. 14)
DOES 1 through 25, inclusive,
16 Defendants.
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18 Pending before the Court is Defendant Palomar Community College District’s
19 motion to dismiss pursuant to Cal. Code Civ. Proc. § 425.16. (Doc. No. 14.) Plaintiff filed
20 an opposition to Defendant’s motion to dismiss, to which Defendant replied. (Doc. Nos.
21 18, 19.) Having reviewed the papers submitted and oral argument from both parties, the
22 Court DENIES Defendant’s motion to dismiss in its entirety.
23 I. BACKGROUND
24 Kathryn Kailikole (“Plaintiff”) brings seven causes of action, under state and federal
25 law, for retaliation and disability discrimination against her previous employer, Palomar
26 Community College District (“Defendant”). (Doc. No. 7.) Plaintiff alleges that on
27 December 14, 2017 she was “mysteriously and suddenly placed on paid leave.” (Id. ¶ 13.)
28 She was told she could not speak to anyone at the college and was not given information
1 about why she was removed, other than that it involved an investigation related to a
2 confidentiality issue. (Id. ¶ 14.) Plaintiff remained on paid leave for five months without
3 ever being informed of the nature of the allegations. (Id. ¶ 15.)
4 Plaintiff’s retaliation claims are rooted in her participation as a witness in an
5 investigation against Takashi Nakajima (“Nakajima”) and Arthur Gerwig (“Gerwig”), who
6 were professors at Palomar Community College District accused of sexual harassment and
7 race discrimination. (Id. ¶¶ 5–10.) In May 2017, Plaintiff received a report from a faculty
8 member about their racist and sexually harassing conduct, and reported the incident to
9 Shawna Cohen, the District’s Manager of the Equal Opportunity and Compliance Office
10 and a Deputy Title IX Coordinator. (Id. ¶ 6.) On November 1, 2017, an investigator for the
11 school district concluded that Plaintiff was credible, and Nakajima and Gerwig were guilty
12 of violating the College’s anti-harassment policies. (Id. ¶ 9.) No action was taken against
13 these professors. (Id. ¶ 10.) Plaintiff inquired and discussed with other faculty in November
14 2017 as to why action was not being taken. (Id.) On December 12, 2017, the District placed
15 Nakjima and Gerwig on one month of unpaid leave. (Id. ¶ 12.) Plaintiff was subsequently
16 placed on paid leave on December 14, 2017. (Id. ¶ 13.) Plaintiff alleges that her computer
17 was searched, without her consent, to acquire evidence that would discredit her report of
18 Nakajima’s and Gerwig’s racist and sexually harassing conduct. (Id. ¶ 19.) Through this
19 search, an email dated December 8, 2017 was obtained. (Id.) This email contained a
20 forwarded message from the Plaintiff to another faculty member about an incident
21 involving Nakajima and Gerwig. (Id.) The faculty member then forwarded the email to his
22 wife. (Id. ¶¶ 20–22.) Based on this conduct, the District investigator concluded that
23 Plaintiff was part of a conspiracy to leak confidential information about Nakajima and
24 Gerwig outside the College. (Id.) Plaintiff’s disability claims are rooted in her informing
25 the Defendant of her disability and her subsequent termination. (Id. ¶¶ 2, 11, 14.)
26 II. LEGAL STANDARD
27 Pursuant to California Code of Civil Procedure section 425.16 (the anti-SLAPP
28 statute), a defendant may bring a special motion to strike a cause of action “arising from
1 any act of that person in furtherance of the person’s right of petition or free speech under
2 the United States Constitution or California Constitution in connection with a public issue.”
3 Cal. Code Civ. Proc. [“CCP”], § 425.16, subd. (b)(1). A court determines whether a motion
4 to strike a complaint should be granted by conducting a two-step process. Holbrook v. City
5 of Santa Monica, 144 Cal. App. 4th 1242, 1247 (Cal. Ct. App. 2006). In the first prong,
6 the defendant has the burden of making “a threshold showing that the challenged cause of
7 action is one arising from protected activity.” CCP § 425.16, subd. (e); Holbrook, 144 Cal.
8 App. 4th at 1247. If the defendant meets that burden, then the plaintiff must establish “a
9 probability of prevailing on the claim” supported by admissible evidence. CCP § 425.16,
10 subd. (b); Navellier v. Sletten, 29 Cal. 4th 82, 88–89 (2002).
11 The California Legislature enacted the anti-SLAPP statute to prevent and deter
12 “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom
13 of speech and petition for the redress of grievances.” CCP § 425.16, subd. (a). As such, the
14 Legislature requires courts to construe this section broadly. Id.
15 III. DISCUSSION
16 A. First and Second Causes of Action
17 The first and second causes of action (Title IX and Title VI claims, respectively) are
18 federal claims. The law is unequivocally clear; California’s anti-SLAPP statute does not
19 apply to federal claims. Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010).
20 Accordingly, the Court DENIES Defendant’s motion to dismiss the first and second causes
21 of action.
22 B. Third through Seventh Causes of Action
23 Defendant argues Plaintiff’s entire lawsuit arises from Defendant’s protected
24 activity. (Doc. No. 14 at 8.)
25 A claim “arises from protected activity” where the defendant’s conduct fits into one
26 of the following four categories of protected free speech and petitioning activities: (1) any
27 written or oral statement or writing made before a legislative, executive, or judicial
28 proceeding, or any other official proceeding authorized by law; (2) any written or oral
1 statement or writing made in connection with an issue under consideration or review by a
2 legislative, executive, or judicial body, or any other official proceeding authorized by law;
3 (3) any written or oral statement or writing made in a place open to the public or a public
4 forum in connection with an issue of public interest; or (4) any other conduct in furtherance
5 of the exercise of the constitutional right of petition or the constitutional right of free speech
6 in connection with a public issue or an issue of public interest. CCP § 425.16(e); Park v.
7 Bd. of Trustees of the California State Univ., 2 Cal. 5th 1057, 1062–63 (2017).
8 The court disregards the labeling of the claim and instead examines the “principal
9 thrust or gravamen” of the claim. Hylton v. Frank E. Rogozienski, Inc., 177 Cal. App. 4th
10 1264, 1272 (Cal. Ct. App. 2009).
11 i. Section 425.16, subdivision (e)(2)
12 Defendant asserts the pre-termination procedures constituted an “official proceeding
13 authorized by law.” (Doc. No. 14-1 at 15.) Plaintiff does not oppose this assertion. (See
14 generally Doc. No. 18.) Defendant argues the alleged wrongful acts (placing Plaintiff on
15 leave, not renewing her employment contract, and ultimately terminating her) were carried
16 out in furtherance, or in anticipation, of the official proceeding, and thus, constituted
17 “protected activity.” (Doc. No. 19 at 3.)
18 Defendant relies upon Vergos, Miller, and Hansen for its argument that Defendant’s
19 acts constituted protected activity under the anti-SLAPP statute. (Doc. No. 14-1 at 15–16.)
20 However, the instant case is distinguishable from each of these cases. In Vergos, plaintiff
21 alleged he was sexually harassed in his public employment and filed a civil rights claim
22 against the manager who denied his administrative grievance. Vergos v. McNeal, 146 Cal.
23 App. 4th 1387, 1390 (Cal. Ct. App. 2007). The court held that the hearing officer’s decision
24 to deny the employee’s grievance was protected activity because to hold otherwise “could
25 result in public employees’ reluctance to assume the role of a hearing officer . . . and thus
26 thwart the petitioning activities of employees with grievances.” Id. at 1398.
27 Unlike here, the Vergos court addressed an anti-SLAPP motion filed by the
28 individual officer, not by the public university employer. Id. at 1390. The Vergos court was
1 not required to, and thus did not, address whether any claims against the employer
2 defendant arose from protected activity. See Park, 2 Cal. 5th at 1070. Here, Plaintiff sued
3 only the public entity, and it is the public entity that filed the motion to strike. As such,
4 Defendant’s reliance on Vergos is misplaced.
5 In Miller, a former employee sued its city employer for racial discrimination,
6 harassment, retaliation, failure to correct, intentional infliction of emotional distress, and
7 defamation. Miller v. City of Los Angeles, 169 Cal. App. 4th 1373, 1378 (Cal. Ct. App.
8 2009). There, the court held defendant’s motion to strike was proper because plaintiff’s
9 claims arose out of his public employer’s investigation and determination of plaintiff’s
10 misconduct. Id. at 1383. Notably, defendant’s motion to strike was filed only as to the
11 claims for intentional infliction of emotional distress and defamation. Id. at 1378–79. Here,
12 Plaintiff’s claims are for retaliation and discrimination. Accordingly, Miller is not
13 instructive in resolving Defendant’s motion to strike claims for retaliation and
14 discrimination.
15 Finally, in Hansen, a retired employee sued his public employer for retaliation
16 prohibited under the whistleblower statute. Hansen v. California Dept. of Corrs. and
17 Rehab., 171 Cal. App. 4th 1537, 1541 (Cal. Ct. App. 2008). There, defendant launched an
18 investigation into allegations made that plaintiff had committed criminal acts. Id. The court
19 held the public employer’s “internal investigation itself was an official proceeding
20 authorized by law” and statements and writings made in connection therewith were
21 protected activity. Id. at 1544. Significantly, the court noted the plaintiff’s “complaint
22 [was] based on statements and writings [defendant’s] personnel made during the internal
23 investigation and in securing the search warrant.” Id. at 1544. Here, Plaintiff’s allegations
24 are not based on statements or writings; rather, they are based on the adverse employment
25 actions of placing Plaintiff on paid leave, not renewing her employment contract, and
26 terminating her. (Doc. No. 7 ¶ 28.) As such, Hansen does not aid Defendant in establishing
27 its acts constituted “protected activity.”
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1 The holdings in Nam and Park are instructive here. In both cases, the defendants
2 raised similar arguments as Defendant. In Nam, the plaintiff, a medical resident of
3 University of California Davis, was investigated and terminated after complaining about
4 medical procedures. Nam v. Regents of the Univ. of California, 1 Cal. App. 5th 1176, 1180–
5 82 (Cal. Ct. App. 2016). Plaintiff sued her employer, a public hospital, for discrimination,
6 sexual harassment, and wrongful termination. Id. at 1184. The defendant, Regents, filed an
7 anti-SLAPP motion asserting the suit was “based on the oral and written complaints it
8 received about [plaintiff], the various written warnings it provided her, the results of the
9 ensuing investigations, and her written notice of termination,” which all constituted
10 protected activity. Id. at 1186. The court rejected this argument and held it was “perfectly
11 clear” that the gravamen of plaintiff’s claims was based on defendant’s retaliatory conduct
12 for challenging the department’s policies and procedures and rejecting inappropriate sexual
13 advances. Id. at 1193. The court questioned whether plaintiff’s suit should have been
14 characterized as a SLAPP at all because “a quintessential SLAPP is filed by an economic
15 powerhouse to dissuade its opponent from exercising its constitutional right to free speech
16 or to petition.” Id. at 1191.
17 In Park, the plaintiff, a Korean professor at California State University, was denied
18 tenure while Caucasian faculty members with comparable records were granted tenure.
19 Park, 2 Cal. 5th at 1068. The Supreme Court disapproved of defendant’s argument that “all
20 aspects of its tenure process, including its ultimate decision, are inextricably intertwined
21 protected activity.” Id. at 1071. The court held the ultimate tenure decision itself is not
22 protected activity. Id. at 1069. In reaching this decision, the court explained that denying
23 protection for the ultimate decision itself would not chill participation on matters of public
24 importance and “none of the core purposes the Legislature sought to promote when
25 enacting the anti-SLAPP statute are furthered by ignoring the distinction between a
26 government entity’s decisions and the individual speech or petitioning that may contribute
27 to them.” Id. at 1071.
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1 Presently, Defendant asserts the facts here are distinguishable from Nam and Park
2 for two reasons. First, Defendant contends, unlike the defendants in Nam and Park, its
3 personnel decisions were subject to statutory requirements. (Doc. No. 14-1 at 18.)
4 Specifically, Defendant is subject to California Government Code section 54950 (the Ralph
5 M. Brown Act), which mandates all official business conducted by public entities in
6 California be openly accessible to the public. (Id. at 12.) Defendant argues because the
7 disciplinary actions taken against Plaintiff were under a publicly disclosed vote and subject
8 to public scrutiny, the termination decision was a protected activity. (Id. at 19.)
9 However, the Park court observed that “[g]overnment decisions are frequently
10 ‘arrived at after discussion and a vote at a public meeting.’” Park, 2 Cal. 5th at 1067
11 (quoting San Ramon Valley Fire Protection Dist. v. Contra Costa Cty. Employees’
12 Retirement Assn., 125 Cal. App. 4th 343, 358 (Cal. Ct. App. 2004)). Even so, “[a]cts
13 of governance mandated by law, without more, are not exercises of free speech or
14 petition.” San Ramon, 125 Cal. App. 4th at 354.
15 Defendant argues a finding that public entity decisions are protected activity will not
16 immunize public entities from judicial scrutiny. (Doc. No. 14-1 at 20.) The Court disagrees.
17 A termination decision reached unanimously under a publicly disclosed vote does little –
18 if anything at all – to alleviate the concern that public employers could simply terminate
19 employees with unlawful motives and then shield themselves with the anti-SLAPP statute.
2 0 Second, Defendant asserts, unlike the defendants in Nam and Park, Defendant’s
21 protected activity forms the gravamen of Plaintiff’s complaint and is not “merely
22 incidental” to Plaintiff’s causes of action. (Doc. No. 14-1 at 19.) Specifically, Defendant
23 argues that, unlike in Nam and Park, Plaintiff alleged the retaliatory and discriminatory
24 conduct occurred after Defendant had initiated an investigation into Plaintiff’s misconduct.
25 (Id. at 19–20.) Defendant places heavy weight on this distinguishable fact. However, no
26 authority has been cited to establish that allegations of retaliatory and discriminatory
27 conduct after the commencement of an investigation would bring the conduct within the
28 scope of “protected activity.” In support of this argument, Defendant only quotes the Nam
1 court, which stated, “had defendants received the complaints about [plaintiff’s]
2 performance and proceeded to discipline her in a manner commensurate with her
3 shortcomings, in the absence of evidence of retaliation, its acts would have been
4 characterized as protected.” (Id. at 13 (quoting Nam, 1 Cal. App. 5th at 1192).)
5 The distinction Defendant highlights is not persuasive. Defendant cites no authority
6 that supports its position. Moreover, the significant phrase in the Nam quote is “in the
7 absence of evidence of retaliation.” Presently, this Court has already determined that
8 Plaintiff has pled sufficient facts to evidence retaliatory and discriminatory conduct. (Doc.
9 No. 20 at 5–7.) Finally, the argument is troublesome from a public policy standpoint.
10 Defendant seeks to have this Court exonerate its actions by bringing it within the scope of
11 “protected activity” because Plaintiff pled the retaliation and discrimination occurred after
12 the investigation. To make such a holding would entice public employers with ill motives
13 to prematurely or unjustifiably commence investigations by instilling confidence that
14 they’ll prevail on a motion to strike. As the Nam court put it: “[t]he anti-SLAPP statute
15 was not intended to allow an employer to use a protected activity as the means to
16 discriminate or retaliate and thereafter capitalize on the subterfuge by bringing an anti-
17 SLAPP motion to strike the complaint.” Nam, 1 Cal. App. 4th at 1191.
18 In an anti-SLAPP analysis, we must accept as true the plaintiff’s pleaded facts. Young
19 v. Tri-City Healthcare Dist., 210 Cal. App. 4th 35, 54 (2012). Here, Plaintiff alleged she
20 reported Nakajima and Gerwig’s racist and sexually harassing conduct. (Doc. No. 7 ¶ 6.)
21 Plaintiff alleged she requested disability accommodation. (Id. ¶ 11.) Plaintiff further
22 alleged Defendant thereafter retaliated and discriminated against her by placing her on paid
23 leave, not renewing her contract, and terminating her. (Id. ¶ 28.) As alleged, the adverse
24 employment decisions were not taken because of Plaintiff’s performance issues or the pre-
25 termination procedures; rather the thrust of Plaintiff’s complaint is that Defendant
26 retaliated against her for reporting Nakajima’s and Gerwing’s racist and sexually harassing
27 conduct and discriminated against her for her disability. (Doc. No. 7 ¶¶ 2, 6, 11, 14.)
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1 ii. Section 425.16, subdivision (e)(4)
2 Defendant next argues the alleged wrongful acts were undertaken in connection with
3 a public interest and thus, were protected. (Doc. No. 14-1 at 17.) Plaintiff was responsible
4 for managing taxpayer funded grants, while receiving a taxpayer funded salary, which
5 Defendant argues was a matter of public interest. (Id.) Defendant contends Plaintiff’s
6 performance issues placed Defendant in jeopardy of losing grants that fund college
7 programs and professor salaries. (Id.) Moreover, an investigation of Plaintiff’s “suspicious
8 communications” where confidential information was leaked to persons outside of the
9 District “was a legitimate public interest.” (Id.) Defendant argues the alleged performance
10 issues imposed a “duty” on Defendant to perform the acts that form the basis of Plaintiff’s
11 complaint. (Id.)
12 In support of this public interest argument, Defendant relies on Hunter v. CBS
13 Broadcasting, Inc., 221 Cal. App. 4th 1510 (2012). In Hunter, a television station decided
14 to hire a young, female weather news anchor instead of an older, male applicant. Id. at
15 1514. The male applicant sued the television station alleging age and gender
16 discrimination. Id. at 1515. In finding defendant’s conduct fit within subdivision (e)(4) of
17 the anti-SLAPP statute, the court reasoned “reporting the news” was an exercise of free
18 speech, weather reporting was a matter of public interest, defendant’s selection of weather
19 anchors to report the news “helped advance or assist” First Amendment expression, and
20 therefore, the selection qualified as “protected activity.” Id. at 1521.
21 To the extent Plaintiff managed taxpayer funded grants and received a tax-payer
22 funded salary, Plaintiff’s performance issues may have been a matter of public interest.
23 Regardless, Defendant failed to establish how its conduct consists of activities furthering
24 free speech or petitioning rights required to bring its conduct within the scope of “protected
25 activity”. Thus, this Court DENIES Defendant’s Motion to Dismiss Plaintiff’s third,
26 fourth, fifth, sixth, and seventh causes of action.
27 / / /
28 / / /
1 IV. CONCLUSION
2 For the foregoing reasons, the Court DENIES the Defendant’s motion to dismiss
3 || pursuant to Cal. Code Civ. Proc. § 425.16. in its entirety, (Doc. No. 14), and ORDERS
4 ||Plaintiff to submit an itemization detailing the attorneys’ fees incurred in opposing
5 || Defendant’s motion to dismiss the federal claims pursuant to Cal. Code Civ. Proc. § 425.16
6 || by September 13, 2019.
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8 || IT IS SO ORDERED.
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10 Dated: August 22, 2019 D7 Necoeag li
ll Hon. Anthony J.@Battaglia
1D United States District Judge
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