Judge: Daniel S. Murphy, Case: 22STCV19501, Date: 2022-10-03 Tentative Ruling

Case Number: 22STCV19501    Hearing Date: October 3, 2022    Dept: 32

BACKGROUND

            On June 14, 2022, Plaintiff Beverly Rouse filed this employment discrimination action against Defendants El Camino Community College District and Arthur Leible. The operative First Amended Complaint was filed on August 22, 2022. The FAC alleges eight causes of action arising under FEHA for discrimination, harassment, failure to prevent, and failure to accommodate.

            Among other things, Plaintiff alleges that she was denied the opportunity to telework as a disability accommodation. (FAC ¶¶ 83-88.) Plaintiff alleges that she suffers from various underlying health issues that place her at a high risk of COVID infection. (Id., ¶ 81.) Plaintiff alleges that her medical provider recommended to allow her to continue teleworking. (Ibid.)

            On September 2, 2022, Defendant El Camino Community College District filed the instant Special Motion to Strike (anti-SLAPP) on the grounds that Plaintiff’s complaint improperly targets the District’s collective bargaining process and publishing of COVID policies.

LEGAL STANDARD

A special motion to strike under Code of Civil Procedure section 425.16 allows a defendant to seek early dismissal of a lawsuit that qualifies as a strategic lawsuit against public participation. A SLAPP is “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.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

Such acts include (1) any written or oral statement or writing made before a judicial proceeding, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body, (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. (Code Civ. Proc., § 425.16, sub. (e).)

Evaluation of an anti-SLAPP motion requires a two-prong process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. Second, if the court finds such a showing has been made, the court must then consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.) If both prongs are met—(1) the defendant is being sued for protected activity, and (2) the plaintiff has no reasonable probability of success—then the lawsuit is subject to being stricken under the statute. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 709-10.)

EVIDENTIARY OBJECTIONS

            Defendant’s objections are overruled.

DISCUSSION

I. Protected Activity

            To satisfy the first prong, a moving defendant must identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) 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.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060.)

            Defendant argues that “issues concerning the District’s handling of COVID-19, from the closing of campus due to stay-at-home orders through the return of employees following Gov. Newsom’s reopening of the state so that employees are onsite to serve returning students and other employees are not public issues or matters of public interest. Nor can it hardly be argued that the District’s engagement with collective bargaining units and the agreements between the two parties published by the District are not public issues or matters of public interest.” (Mtn. 8:6-11.)

            However, even if the COVID pandemic and Defendant’s response to it are matters of public interest, the complaint does not target that activity. Plaintiff alleges that Defendant failed to grant her a reasonable accommodation by allowing her to telework. The discrimination and failure to accommodate claims are not based on Defendant’s publication of its COVID policies or agreements. The inclusion of Defendant’s policies and publications in the allegations does not turn the complaint into a SLAPP. Denying an accommodation is not protected activity, and it is not made into protected activity by the fact that Defendant published policies regarding telework.

Even if Defendant followed its policies in denying Plaintiff’s accommodation, the publication of the policies would only be “a step leading to some different act for which liability is asserted” rather than the actual wrong complained of. (See Park, supra, 2 Cal.5th at p. 1060.) “[A]s a general rule, a legal challenge to a particular staffing decision will have no substantial effect on the [defendant’s] ability to speak on public issues, which is the anti-SLAPP statute's concern.” (Wilson, supra, 7 Cal.5th at p. 896.) The court in Wilson ultimately found that CNN’s termination of a writer for plagiarism was protected activity because plagiarism affects CNN’s credibility and ability to publish speech in connection with matters of public interest. (Id. at p. 898.) The denial of Plaintiff’s requested accommodation in this case has no similar effect on Defendant’s exercise of free speech. Therefore, Defendant has failed to satisfy the first prong.

II. Probability of Success

A plaintiff establishes a probability of prevailing on the claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff's favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-14.) Rather than weighing the evidence, the court must “accept as true the evidence favorable to the plaintiff . . . The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as a SLAPP . . . .” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.¿) The defendant’s showing is only analyzed “to determine if it defeats the plaintiff’s claim as a matter of law.” (Area 55, LLC v. Nicholas & Tomasevic (2021) LLP, 61 Cal.App.5th 136, 151.)

            Defendant’s motion fails on the first prong alone. Nonetheless, Defendant’s evidence also fails to preclude Plaintiff’s claims as a matter of law for purposes of the second prong. Defendant argues that Plaintiff failed to provide proper documentation of a disability and cannot demonstrate that she suffered an adverse employment action. (Mtn. 11:20-13:8.)

However, Plaintiff has evidence that she submitted documentation from her medical providers detailing her health concerns and recommending telework. (Rouse Decl. ¶ 14.) A factual dispute over the adequacy of Plaintiff’s documentation does not defeat the minimal merit of Plaintiff’s claims. Additionally, Defendant itself acknowledges that an adverse employment action is any “course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (Mtn. 11:20-27 [quoting Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063].) Nothing in that definition excludes the conduct at issue here. Plaintiff was made to work in person despite underlying health conditions that rendered her particularly vulnerable to COVID infection, which caused increased anxiety as coworkers around her became sick with COVID. (Rouse Decl. ¶¶ 26, 39.) This could be considered by a reasonable jury to have “adversely affected the terms, and conditions of a plaintiff’s employment.” (See Holmes, supra, 191 Cal.App.4th at p. 1063.)      

            Defendant also argues that it sufficiently accommodated Plaintiff in 2021 and that Plaintiff did not request an accommodation in 2022. (Mtn. 14:17-15:9.) However, Plaintiff disputes that the accommodations were adequate because she had to work in person despite her immunocompromised state, and she made an accommodation request as recently as February 2022. (Rouse Decl. ¶¶ 24-26, 28; see Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971 [“Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith”].) Plaintiff also avers that her duties can be adequately performed remotely. (Rouse Decl. ¶¶ 35-38.) This sufficiently establishes the minimal merit of Plaintiff’s claims.

III. Sanctions

“If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16(c)(1).) “‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (Id., § 128.5(b)(2).) Sanctions under Section 128.5 should be “made with restraint” because “our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments . . . .” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1121, internal citations omitted.)

The Court finds that Defendant did not act frivolously in filing its anti-SLAPP motion. Defendant believes that it legitimately denied Plaintiff’s requests to work remotely based on a Memorandum of Understanding (MOU) reflecting a policy that employees must sufficiently demonstrate a disability before being allowed to telework. Plaintiff’s complaint does mention this MOU, and acknowledges that the MOU affected Defendant’s telework policies. (See FAC ¶¶ 78, 185-186.) A reasonable attorney may conclude that Plaintiff’s complaint thus targets protected activity, or the publication of the MOU and associated policies. Although Defendant is incorrect, as discussed above, its arguments do not satisfy the standard for being frivolous. (See Code Civ. Proc., § 128.5(b)(3); Kumar, supra, 71 Cal.App.5th at p. 1121.)

CONCLUSION

            Defendant’s Special Motion to Strike is DENIED. Plaintiff’s request for sanctions is denied.