Judge Teresa A. Beaudet, Case Number: 23STCV17682, Date: 2023-11-09 Tentative Ruling

On July 27, 2023, Plaintiff Nancy Klosowski (“Plaintiff”) filed this instant action against Defendants Manhattan Beach Unified School District (the “District”) and Tom Stekol (“Stekol”) (jointly, “Defendants”).

On September 27, 2023, Plaintiff submitted a Second Amended Complaint (“SAC”) alleging causes of action for (1) age discrimination, (2) hostile work environment, (3) failure to prevent discrimination and harassment, (4) intentional infliction of emotional distress, and (5) false imprisonment.[1]

On October 30, 2023, the Court issued a “Stipulation and Order Re: Filing of Plaintiff’s Second Amended Complaint and Plaintiff’s Request for Punitive Damages” in this matter. The October 30, 2023 Order provides, inter alia, that “Based on the stipulation of the Parties, and good cause being shown, it is hereby ORDERED, as follows: 1. That Plaintiff is granted leave to file her SAC served on September 27, 2023, and that the SAC is deemed filed September 27, 2023 pro nunc tunc [sic]. 2. That Plaintiff is only seeking punitive damages against the individual defendant, and not the District.”

Defendants now specially move to strike the entire SAC pursuant to Code of Civil Procedure section 425.16. Defendants also seek attorneys’ fees. Plaintiff opposes.

In the SAC, Plaintiff alleges that she has been an employee of the District for 29 years, “holding her most recent position as Supervisor for the last ten years.” (SAC, ¶ 14.)

Plaintiff alleges that “[b]eginning in the Fall of 2021, [Plaintiff] was repeatedly asked by employees of the District when she planned to retire from the District to which she responded that she did not know.” (SAC, ¶ 19.) “On April 13, 2022, out of the blue, Stekol placed Plaintiff on a paid administrative leave of absence without any explanation whatsoever.” (SAC, ¶ 20.) “From that time until the end of the school year in late June, Plaintiff was told by the District to stay at home and not return to work.” (SAC, ¶ 20.) Plaintiff alleges that “[i]t was later learned that the basis of placing Plaintiff on administrative leave was that a student had made accusations against [Plaintiff].” (SAC, ¶ 20.) Plaintiff alleges that “[t]he idea that someone such as the Plaintiff could be credibly accused of any type of misconduct, let alone sexual misconduct, is ludicrous. The allegations made against Plaintiff were used as a pre-text by the Defendants to push the Plaintiff out.” (SAC, ¶ 16.)

Plaintiff was informed by Stekol that the District would be performing an investigation. (SAC, ¶ 21.) Plaintiff alleges that “[t]he Defendant was going to perform an investigation, after they had already made a police report. However, a replacement was immediately named on the District website who was substantially younger than the Plaintiff.” (SAC, ¶ 21, emphasis omitted.) Plaintiff alleges that “[d]espite having already hired someone to replace her, [the District] tortured the Plaintiff over the next six weeks forcing her to ponder her fate. She was told to sit in a windowless, empty office, from 7:00 a.m. until 3:30 p.m, without any work and she was not allowed to leave.” (SAC, ¶ 21.) Plaintiff alleges that “she was never interviewed as part of any purported investigation; never offered an opportunity to provide any explanation if one was even necessary.” (SAC, ¶ 21, emphasis omitted.)

“On September 7, 2022 Plaintiff was provided a Notice of Recommended Discipline of Dismissal and a Statement of Charges and advised of her right to a Skelly hearing.” (SAC, ¶ 22.) “Prior to the conduct of the hearing Stekol advised Plaintiff that he would find against her at the Skelly hearing and that the appeal process is merely a rubber stamp of his decision. He also advised Plaintiff that if she was terminated for cause, she would lose her retirement benefits from the District where she worked for almost thirty years.” (SAC, ¶ 22.) Plaintiff alleges that “[b]ased upon the intolerable conditions that she was being placed under, and the inevitability of the decision against her, Plaintiff had no choice but to involuntarily resign her position. Plaintiff was never provided the results of any purported investigation.” (SAC, ¶ 22.)

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” ((Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. ((Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” ((Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

(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.

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” ((Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” ((Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (emphasis in original).) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.) “The anti-SLAPP statute should be broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct.” ((Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 [internal citations omitted].)

In the instant motion, Defendants cite to Jeffra v. California State Lottery (2019) 39 Cal.App.5th 471, 474, where “Plaintiff James Thomas Jeffra was an investigator employed by defendant California State Lottery. He sued defendant, alleging retaliation in violation of the California Whistleblower Protection Act…He alleged defendant engaged in a pretextual investigation, ultimately forcing him to retire, after he filed a whistleblower complaint with the California State Auditor. Defendant filed an anti-SLAPP (strategic lawsuit against public participation) motion to strike the complaint (Code Civ. Proc., § 425.16), contending the complaint arose from protected activity, namely, defendant’s investigation of possible misconduct by plaintiff. The trial court denied the motion, finding the complaint arose from non-protected retaliation, not protected investigations.” (Internal citations omitted.) The Court of Appeal in Jeffra “conclude[d]…that plaintiff’s complaint arose from protected activity.” (Id. at p. 475.)

The Jeffra Court noted that “Defendant points out that its investigation of plaintiff was the allegedly adverse employment action at the heart of plaintiff’s complaint, and we cannot disagree: the investigation was the ‘wrong complained of’—the adverse action that supplies a necessary element of plaintiff’s retaliation claim. And the other adverse actions (plaintiff’s administrative leave and his forced retirement) are inextricably tied to the investigation; plaintiff could not omit reference to the investigation and still have a retaliation claim. Thus, if plaintiff’s complaint arises from the investigation—as it surely does, as that is the very wrong complained of—and if the investigation falls within one or more of the four categories of acts protected by the anti-SLAPP statute, defendant has satisfied its initial burden. That is the case here.” ((Id. at p. 482.) The Jeffra Court further noted that “Defendant correctly asserts the investigation was protected activity under section 425.16, subdivision (e)(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’). The authorities support the proposition that an internal investigation by a state-created entity is an ‘official proceeding authorized by law.’…Although [the plaintiff] was never formally charged with misconduct or a crime, communications preparatory to or in anticipation of the bringing of an official proceeding are within the protection of section 425.16….” (Id. at pp. 482-483 [internal citations omitted].)

Defendants also cite to Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1541, where the Court of Appeal noted that “[w]hile appellant, Douglas R. Hansen, was employed by respondent, California’s Department of Corrections and Rehabilitation (CDCR), as a vocational instructor at the Correctional Custody Institution (CCI), CDCR’s Office of Internal Affairs began an investigation into allegations that Hansen had engaged in misconduct and criminal activity. The alleged criminal activity included violations of Penal Code section 289.6, subdivision (a)(3) (prohibits sexual activity with inmates) and Penal Code section 4570 (prohibits unauthorized communications with inmates). Shortly thereafter, Hansen retired from state service. Nevertheless, the investigation continued, engendering a warrant to search Hansen’s residence. CDCR agents, accompanied by the local police, executed the warrant, searched the residence, and seized several items. However, no criminal charges were ever filed. Based on CDCR’s act of continuing the investigation after his retirement, Hansen filed a complaint alleging that CDCR took retaliatory action against him as a whistleblower in violation of Labor Code section 1102.5...”

The Court of Appeal in Hansen found that “Hansen’s complaint is based on statements and writings CDCR personnel made during the internal investigation and in securing the search warrant. The search warrant affidavit constituted a writing made before a judicial proceeding. Accordingly, those statements fall under section 425.16, subdivision (e)(1).” ((Hansen v. Department of Corrections & Rehabilitation, supra, at p. 1544.) The Hansen Court further noted that “the internal investigation itself was an official proceeding authorized by law…Thus, the objected-to statements and writings, i.e., the allegedly false reports of criminal activity, were made in connection with an issue under consideration by an authorized official proceeding and thus constitute protected activity under section 425.16, subdivision (e)(2). Although Hansen was never formally charged with misconduct or a crime, communications preparatory to or in anticipation of the bringing of an official proceeding are within the protection of section 425.16.” (Id. at p. 1544.)

Defendants argue that here, “[m]uch like the plaintiffs in Jeffra and Hansen, Defendants’ report to law enforcement and subsequent investigation of Plaintiff are the alleged adverse employment actions at the heart of her complaint. Indeed, Plaintiff claims the investigation was wrong, and her administrative leave and purportedly forced resignation are inextricably tied to the investigation.” (Mot. at p. 15:21-25.) Defendants assert that Plaintiff cannot omit reference to the investigation and the subsequent results, and still have viable claims for age discrimination, hostile work environment, failure to prevent discrimination/harassment, IIED, or false imprisonment.” (Mot. at p. 15:26-28.)

Defendants cite to paragraph 16 of the SAC, in which Plaintiff alleges, inter alia, that “[t]he idea that someone such as the Plaintiff could be credibly accused of any type of misconduct, let alone sexual misconduct, is ludicrous. The allegations made against Plaintiff were used as a pre-text by the Defendants to push the Plaintiff out.” (SAC, ¶ 16.) Defendants also cite to paragraphs 19-23 of the SAC. In paragraph 20 of the SAC, Plaintiff alleges, inter alia, that “[i]t was later learned that the basis of placing Plaintiff on administrative leave was that a student had made accusations against [Plaintiff].” (SAC, ¶ 20.) Plaintiff alleges that “[t]he Defendant was going to perform an investigation, after they had already made a police report.” (SAC, ¶ 21.)

In addition, Defendants cite to the supporting Declaration of Tom Stekol. (Mot. at p. 15:21.) Stekol is currently employed by the District as Assistant Superintendent of Human Resources. (Stekol Decl., ¶ 2.) Stekol states that “[d]uring the week of April 4-8, 2022, I became aware of a report of suspected child abuse made to the Manhattan Beach Police Department (‘MBPD’) against the plaintiff…” (Stekol Decl., ¶4.) “On or about May 9, 2022, [Stekol] learned that the Los Angeles County Sheriff’s Department had taken over the investigation…” (Stekol Decl., ¶ 6.) “On or about June 28, 2022, [Stekol] learned from [Los Angeles County Sheriff’s Detective Alexandra Panzone] that [Plaintiff] had been charged with violations of Penal Code sections 288(c)(l)-Lewd Act on a Child, and 647.6(a) Annoying or Molesting a Child. But she also informed [Stekol] that the District Attorney’s Office had decided there was not enough evidence to file the case.” (Stekol Decl., ¶ 8.) Stekol states that he “decided it was necessary to conduct an investigation into the allegations made against [Plaintiff] on the District’s behalf in order to determine whether her conduct rose to a level of misconduct that justified disciplinary action.” (Stekol Decl., ¶ 10.) Stekol further states that “[c]onsistent with the requirements of Administrative Regulation 4218, on or about September 7, 2022, I provided [Plaintiff] ‘Notice of Recommended Discipline; Dismissal-Statement of Charges.’” (Stekol Decl., ¶ 15.) Stekol states that “[a]fter providing notice to [Plaintiff], I spoke with her and her attorney about the charges. After further discussions, we agreed that the Disciplinary Notice issued to [Plaintiff] would be withdrawn in exchange for her resignation.” (Stekol Decl., ¶ 16.)

In the opposition, Plaintiff argues that her claims do not arise from protected activity. Plaintiff asserts that “[t]he District relies on two cases, Jeffra v. Cal. State Lottery (2019) 39 Cal.App.5th 471, 482-483, and Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544. However, those cases are not applicable because they involve communications made during those proceedings. Again, this action has nothing to do with any of the alleged statements made during the investigation. The SAC complains that the District failed to interview the Plaintiff at all during the investigation and created such a hostile work environment such as to constructively discharge the Plaintiff.” (Opp’n at p. 6:12-17.) Plaintiff also asserts that “the Fifth Cause of Action for False Imprisonment has nothing to do with the investigation at all. That simply has to do with the way Plaintiff was treated while the purported investigation was going on.” (Opp’n at p. 6:7-9.)

Defendants do not appear to respond to these points in the reply. As set forth above, the Hansen Court found that “Hansen’s complaint is based on statements and writings CDCR personnel made during the internal investigation and in securing the search warrant. The search warrant affidavit constituted a writing made before a judicial proceeding. Accordingly, those statements fall under section 425.16, subdivision (e)(1).” (Hansen v. Department of Corrections & Rehabilitation, supra, 171 Cal.App.4th at p. 1544.) As discussed, Code of Civil Procedure section 425.16, subdivision (e) provides that “[a]s used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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.” (Emphasis added.)

In addition, to the extent Defendants are relying on Plaintiff’s allegation that “Defendant was going to perform an investigation, after they had already made a police report,” (SAC, ¶ 21, emphasis added); the Court does not find that Defendants have shown that such allegation supplies a necessary element of any of Plaintiff’s causes of action. “[T]he defendant’s first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. 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. To determine whether a claim arises from protected activity, courts must consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The court then evaluates whether the defendant has shown any of these actions fall within one or more of the four categories of act[s] protected by the anti-SLAPP statute.” (Jeffra v. California State Lottery, supra, 39 Cal.App.5th at pages 481-482 [internal quotations and citations omitted, emphasis in original].)

In the first cause of action for age discrimination, Plaintiff alleges, inter alia, that “her age of sixty-five (65) years old was a substantial motivating factor that Defendants considered when deciding to embark on the course of action described herein and treat her differently in the terms, conditions or privileges of employment than other younger employees. At all material times described herein, Plaintiff was treated differently than similarly situated younger employees and/or otherwise subjected to unlawful discriminatory employment practices as prohibited by the laws of California.” (SAC, ¶ 28.)

In the second cause of action for harassment/hostile work environment, Plaintiff alleges, inter alia, that “Plaintiff had the protected status under the FEHA as stated above. Plaintiff had a protected status based her age and as a female employee,” and that “[a]s a direct, legal, and proximate cause of Plaintiff’s aforementioned protected status, described hereinabove, Defendants discriminated against, harassed and retaliated against Plaintiff including, but not limited to, the following ways: Employer hired and/or assigned employees, who did not have Plaintiffs protected status, to assume the duties and responsibilities that Plaintiff had; the employees that Employer hired to assume the duties and responsibilities that Plaintiff had were not as qualified as Plaintiff to assume those duties and responsibilities.” (SAC, ¶¶ 40, 43.) In the third cause of action for failure to prevent discrimination and harassment, Plaintiff alleges that the District “failed to take all reasonable steps to prevent the discrimination and harassment to which Plaintiff was subjected based upon her age.” (SAC, ¶ 59.)

In the fourth cause of action for intentional infliction of emotional distress, Plaintiff alleges that “[a]s a result of Defendants extreme and outrageous conduct described herein, Plaintiff sustained severe emotional distress.” (SAC, ¶ 69.) In the fifth cause of action for false imprisonment, Plaintiff alleges that “Defendant Stekol on multiple occasions intentionally deprived Plaintiff of her freedom of movement by use of physical barriers and/or force and/or threats of force and/or menace,” and that “[t]he restraint and/or confinement of Plaintiff compelled Plaintiff to stay in the places of restraint and/or confinement for an appreciable time.” (SAC, ¶¶ 74-75.)

The Court does not find that Defendants have demonstrated that any of these causes of action arise from any “written or oral statement or writing made before… any other official proceeding authorized by law,” or any “written or oral statement or writing made in connection with an issue under consideration or review by…any other official proceeding authorized by law…” (Code Civ. Proc., § 425.16, subds. (e)(1)-(2).)¿

Because the Court finds that Defendants have failed to establish that Plaintiff’s causes of action arise from protected activity, the burden does not shift to Plaintiff to establish that there is a probability of prevailing on the causes of action.

Defendants state that they “seek $4,400 in attorney’s fees for having to bring this motion.” (Mot. at p. 23:3-4.) In the opposition, Plaintiff asserts that “[t]he motion should be denied and Plaintiff award [sic] her attorney fees in opposing the motion.” (Opp’n at p. 2:17-18.) Pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), “[e]xcept as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. 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.”

As Defendants did not prevail on the instant motion, the Court denies their request for attorney’s fees. In addition, the Court finds that the instant motion was neither frivolous nor intended to cause unnecessary delay. Therefore, the Court declines to award Plaintiff attorney’s fees and costs.

Based on the foregoing, the Court denies Defendants’ special motion to strike.

[1]The first and third causes of action are alleged against the District only, and the second, fourth, and fifth causes of action are alleged against both Defendants. The Court notes that in the SAC, the fourth cause of action for intentional infliction of emotional distress is incorrectly labelled as the “fifth cause of action.” Similarly, the fifth cause of action for false imprisonment is incorrectly labeled as the “sixth cause of action.”

[2]In addition, the Jeffra Court found that “[t]he authorities support the proposition that an internal investigation by a state-created entity is an ‘official proceeding authorized by law.’” (Jeffra v. California State Lottery, supra, 39 Cal.App.5th at p. 482.) Defendants do not appear to provide evidence that the District is a “state-created entity.”

NANCY KLOSOWSKI, Plaintiff, vs. MANHATTAN BEACH UNIFIED SCHOOL DISTRICT, et al., Defendants.	Case No.:	23STCV17682
	Hearing Date:	January 2, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: CCP § 425.16 ANTI-SLAPP SPECIAL MOTION TO STRIKE PLAINTIFFS’ SECOND AMENDED COMPLAINT; REQUEST FOR ATTORNEYS' FEES IN THE AMOUNT OF $4,400

Superior Court of California

County of Los Angeles

Department 50