Escamilla v. San Marino Unified School Dist. CA2/2

Opinion

Filed 8/24/26 Escamilla v. San Marino Unified School Dist. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

LEYDA ESCAMILLA, B343951

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24NNCV03078) v. SAN MARINO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County, William A. Crowfoot, Judge. Affirmed. Dannis Woliver Kelley and Sue Ann Salmon Evans for Defendants and Appellants. Glazier Yee, Guy P. Glazier and Brian T. Clark for Plaintiff and Respondent. ____________________ Plaintiff Leyda Escamilla brought this action against defendants San Marino Unified School District, Linda de la Torre, Jason Rose, and Benjamin Wolf (collectively, Defendants) for allegedly retaliating against her after she disclosed a safety concern about a coworker. Defendants appeal the trial court’s order denying their Code of Civil Procedure section 425.161 special motion to strike the complaint. Because we agree with the trial court, we affirm. FACTUAL BACKGROUND Escamilla is employed by the San Marino Unified School District as a health services assistant at San Marino High School.2 De la Torre is the superintendent of the district, and Rose is the director of human resources. Wolf is the school principal. On August 29, 2023, Escamilla informed Wolf and another supervisor that the school’s head football coach, Nate Turner, had a history of violence, drug dealing, and felony arrests, and was therefore a threat to the safety of students and employees. According to Escamilla, she provided her supervisors with a packet of documents substantiating her report about Turner’s background at their request, and with Wolf’s approval, gave those documents to the district’s school board vice president. Escamilla also gave them to her union president. She wrote a letter to Rose on September 1, 2023, documenting her concerns about Turner.

1 Undesignated statutory references are to the Code of Civil Procedure. 2 This factual background is primarily drawn from the allegations of the complaint. (See § 425.16, subd. (b)(2).)

2 Escamilla alleged Defendants “conspired to protect [the district’s] decision to hire [Turner],” and “de la Torre, Rose, and Wolf concocted a false narrative of [Escamilla’s] reporting and conduct,” and engaged in a campaign of harassment and retaliation against her. On August 29, 2023, Wolf wrote a letter to Escamilla accusing her of “ ‘distributing’ ” the document packet on campus, which Escamilla claims is false. The district launched an investigation into Escamilla’s purported misconduct in distributing the documents. On October 16, 2023, Rose and Wolf allegedly “threatened [Escamilla] with dismissal unless she agreed to retire at the end of the school year following paid administrative leave,” and threatened to “press charges against [her].” De la Torre approved an October 30, 2023, letter written by Rose stating the investigation into Escamilla was complete and supposedly mischaracterizing the investigator’s findings. On November 1, 2023, in a letter signed by Rose, the district informed Escamilla of its intent to dismiss her from employment based on her purported misconduct. Escamilla denied the misconduct allegations and appeared at a hearing about the notice of intent to dismiss. On November 15, 2023, “Wolf sent [Escamilla] home from work indefinitely.” Wolf also gave a letter written by Rose to Escamilla, allegedly “falsely claiming [the district] was conducting an investigation into [her] misconduct.” The district placed Escamilla on paid administrative leave. On December 11, 2023, the district, de la Torre, and Rose sent Escamilla a “Final Notice of Intent to dismiss her from [district] employment.” Escamilla responded in writing by 3 denying the allegations. Escamilla alleges she was constructively terminated from her employment after that date. PROCEDURAL HISTORY Escamilla filed her complaint in this action on July 23, 2024, alleging Defendants retaliated against her for making a protected disclosure about Turner. (See Ed. Code, §§ 44110– 44114.) On September 30, 2024, Defendants moved to strike the complaint pursuant to section 425.16–widely known as an “anti- SLAPP motion.” (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) They argued Escamilla’s claims were based on their activity protected by the anti-SLAPP statute, and Escamilla could not show she was likely to prevail on the merits. (See Code Civ. Proc., § 425.16, subd. (b)(1).) That same day, Defendants also filed a demurrer. The trial court heard argument on the anti-SLAPP motion on December 17, 2024, and denied it. The court concluded Defendants had failed to show Escamilla’s claims were premised upon their protected speech, rather than their disciplinary decisions and allegedly retaliatory actions. Because Defendants had not carried their burden on the first element of the anti- SLAPP test, the court did not address whether Escamilla could show a likelihood of prevailing on the merits. Defendants timely appealed. (See § 904.1, subd. (a)(13); Cal. Rules of Court, rule 8.104(a)(1)(B).) DISCUSSION The anti-SLAPP statute “provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, italics omitted (Baral); see also § 425.16, subd. (b)(1).) A court’s analysis of an anti-SLAPP motion proceeds in two steps. (Baral, at p. 384.)

4 “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.” (Ibid.) “[T]he moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park); see also § 425.16, subd. (b)(1).) The first step of that test is dispositive of this appeal. As we explain, we agree with the trial court’s conclusion Defendants did not show Escamilla’s claims arose from any of their protected activity. Thus, we need not and do not consider the second step of the anti-SLAPP analysis. (See Verceles v. Los Angeles Unified School Dist. (2021) 63 Cal.App.5th 776, 792, fn. 8 (Verceles).) I. A Defendant Must Make Two Showings at the First Step of the Anti-SLAPP Analysis The first step of the anti-SLAPP analysis itself requires the defendant to make “two related showings.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 (Wilson).) First, “[c]omparing its statements and conduct against the [anti- SLAPP] statute, it must demonstrate activity qualifying for protection.” (Ibid.) The type of activity protected “include[s] a specified range of statements, writings, and conduct in connection with official proceedings and matters of public interest.” (Park, supra, 2 Cal.5th at p. 1062; see also § 425.16, subd. (e).) Second, “comparing that protected activity against the complaint, [the defendant] must also demonstrate that the activity supplies one or more elements of a plaintiff’s claims.” (Wilson, supra, 7 Cal.5th at p. 887.) That is, the defendant must show his “speech or petitioning activity itself is the wrong complained of, and not just evidence of liability.” (Park, supra, 5 2 Cal.5th at p. 1060.) The protected activity must be the “ ‘conduct by which plaintiff claims to have been injured’ ” and what “ ‘gives rise to [the defendant’s] asserted liability.’ ” (Id. at p. 1063, italics omitted.) When evaluating a defendant’s showing at this stage, a court “should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Ibid.; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1015 (Bonni) [“a claim is subject to an anti-SLAPP motion . . . if its elements arise from protected activity”].) We therefore reject Defendants’ assertion “the only thing that a defendant needs to show” to prevail on an anti-SLAPP motion “is that plaintiff’s lawsuit ‘arises from’ defendant’s exercise of free speech or petition rights as defined in section 425.16.” On the contrary, the statute applies to “cause[s] of action . . . arising from” a defendant’s protected activity (id., subd. (b)(1)), which our Supreme Court has told us refers “only [to] claims that are based on the [protected] conduct” (Baral, supra, 1 Cal.5th at p. 382, italics added). We follow the Supreme Court’s direction to consider the basis of a plaintiff’s “individual claims,” rather than struggling “to settle intractable, almost metaphysical problems about the ‘essence’ of a cause of action.” (Bonni, supra, 11 Cal.5th at p. 1011.) II. Defendants Failed to Show the Required Nexus Between Any Protected Activity and Escamilla’s Claims The trial court concluded Defendants failed to show the required nexus between any protected activity and Escamilla’s claims. We agree.

6 A. Standard of Review “We review de novo the grant or denial of an anti-SLAPP motion.” (Park, supra, 2 Cal.5th at p. 1067.) B. The Elements of Escamilla’s Claims According to Defendants, “[t]he elements of [Escamilla’s] retaliation claim are” those laid out in Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69. “ ‘ “[A retaliation] plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” ’ ” (Ibid.; see also id. at p. 63 [discussing retaliation claims under Gov. Code, § 12940 and Lab. Code, § 1102.5]; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz) [recognizing same test].) While Escamilla’s complaint contains four causes of action, Defendants do not distinguish among them for purposes of their anti-SLAPP analysis, and neither do we. (See Park, supra, 2 Cal.5th at p. 1068, fn. 3.) Because it is Defendants’ burden to demonstrate Escamilla’s claims are premised upon protected conduct, we accept Defendants’ assertion those are the elements of Escamilla’s claims.3 (See Wilson, supra, 7 Cal.5th at p. 887.)

3 We express no opinion whether retaliation under the Education Code may differ from other retaliation causes of action. (Cf. Bonni, supra, 11 Cal.5th at pp. 1015–1016, 1018–1019 [discussing retaliation claim under Health & Saf. Code, § 1278.5].)

7 C. Defendants Did Not Show Any Alleged Adverse Employment Actions Are Protected Activity Our Supreme Court has clearly told us “for anti-SLAPP purposes[,] retaliation claims arise from the adverse actions allegedly taken, notwithstanding the plaintiff’s allegation[s] that the actions were taken for an improper purpose.” (Wilson, supra, 7 Cal.5th at p. 892.) We must therefore carefully “respect the 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,” like activities evincing a discriminatory or retaliatory animus on the part of the defendant. (Park, supra, 2 Cal.5th at p. 1064; see id. at pp. 1065– 1066.) In that regard, it is a “relatively unusual case in which [a] retaliation defendant” can meet his “first-step burden of showing that [his] challenged actions qualify as protected activity.” (Wilson, at p. 891.) For purposes of a retaliation claim, an adverse employment action “materially affect[s] the terms, conditions, or privileges of employment” and is “more than [a] mere inconvenience[] or insignificant change[] in job responsibilities.” (Yanowitz, supra, 36 Cal.4th at p. 1060.) The adverse employment actions underlying Escamilla’s claims are premised upon Defendants’ conduct: e.g., personnel actions “including but not limited to forced retirement, forced administrative leave, . . . dismissal,” and “constructive[] terminat[ion].” (See Verceles, supra, 63 Cal.App.5th at pp. 780, 785–786 [paid suspension and termination]; St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 315 [constructive discharge]; Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 362 [administrative leave].) Escamilla’s retaliation claims “depend on” proof of that 8 alleged conduct, not on any of Defendants’ speech or other communications. (Park, supra, 2 Cal.5th at p. 1068; see also ibid. [“Communications disparaging [the plaintiff], without any adverse employment action, would not support a claim for employment discrimination, but an adverse employment action, even without the prior communications, surely could.”].) We recognize the complaint contains a variety of allegations about Defendants’ oral and written statements in connection with their investigation into Escamilla’s purported misconduct. Defendants specifically identify the following allegations of protected activity in their opening brief: (1) Wolf’s August 29, 2023, “substantially false letter”; (2) “threat[s]” made by Rose and Wolf during a mid-October 2023 meeting with Escamilla; (3) Rose’s October 30, 2023, and November 1, 2023, letters to Escamilla containing false assertions; (4) a letter given to Escamilla on November 15, 2023, “plac[ing] [her] on administrative leave” and allegedly containing false information; and (5) a “Final Notice of Intent to dismiss [Escamilla] from [district] employment,” delivered to her on December 11, 2023, containing “false allegations.” Escamilla does not seriously dispute those allegations concern statements made by various Defendants, or that they are protected by section 425.16, subdivision (e)(1) and (2). For purposes of this appeal, we generally accept Defendants’ assertion those particular allegations involve their activity protected by section 425.16, subdivision (e)(1) and (2).4 4 Defendants now suggest their speech was also protected by section 425.16, subdivision (e)(3) and (4) because Escamilla requested official proceedings be held in an open, public session.

9 (See Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 764–766 (Laker) [defamatory statements made in the context of an investigation were protected activity].) Nevertheless, Defendants have not demonstrated the required nexus between those allegations and Escamilla’s claims. (See Park, supra, 2 Cal.5th at p. 1060 [even where a defendant shows he engaged in protected activity, he must still show a nexus “between [the] challenged claim and [his] protected activity”].) That is, they have not shown Escamilla alleges she was injured by that protected activity. (See id. at p. 1063.) To be sure, Escamilla’s allegations about what Defendants said or wrote may relate to Defendants’ allegedly illegal motives and could help her ultimately prove her retaliation claims,5 but We decline to consider that newly minted argument for the first time on appeal. (See DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 [“ ‘An argument or theory will . . . not be considered if it is raised for the first time on appeal.’ ”].) 5 Defendants argue Escamilla cannot rely on their statements to prove retaliation because they are privileged communications under Civil Code section 47, subdivision (b). (See Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 375 [§ 47, subd. (b) “operates to bar civil liability for any tort claim based upon a privileged communication”].) We decline to reach this issue, which Escamilla disputes, because we are not concerned with the merits of Escamilla’s claims at this stage of the anti-SLAPP analysis. (See Baral, supra, 1 Cal.5th at p. 396; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 768, 769–771 [the plaintiffs could not meet their second-step anti-SLAPP burden because their cause of action was based on privileged communications].)

10 that does not demonstrate the claims are based on those allegations within the meaning of the anti-SLAPP statute. (See Park, supra, 2 Cal.5th at p. 1068 [communications may be evidence bearing upon a discrimination claim, but the claim does not depend upon them].) Escamilla will ultimately rely on essentially two types of allegations to make out retaliation: “(1) that [Defendants] subjected [her] to an adverse employment action or actions, and (2) that [Defendants] took these adverse actions for . . . retaliatory reasons.” (Wilson, supra, 7 Cal.5th at p. 885.) But “a plaintiff’s allegations of illicit motive” are not “a bar to anti-SLAPP protection.” (Id. at p. 889.) Instead, in considering an anti-SLAPP motion, we examine “the conduct of defendants without relying on whatever improper motive the plaintiff alleged.” (Wilson, at p. 888.) For purposes of a retaliation claim, “[w]hat gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a . . . retaliatory consideration.” (Park, at p. 1066.) Defendants may have communicated some adverse employment actions to Escamilla via oral or written statements, but that does not transform the statements themselves into adverse employment actions for purposes of Escamilla’s retaliation claims. (See Park, supra, 2 Cal.5th at p. 1071 [courts can “separate an entity’s decisions from the communications that give rise to them”]; cf. Bonni, supra, 11 Cal.5th at p. 1023 [§ 425.16, subd. (e)(4) “does not extend protection to every bit of conduct factually related to actual speech”].) That is, firing 11 someone does not generally constitute protected speech,6 even if effectuated by a supervisor saying: “You’re fired.” The same is true of adverse employment actions short of termination. Because Defendants fail to carry their burden of showing Escamilla’s claims arose from their protected activity, their anti- SLAPP motion was properly denied. D. Defendants’ Other Arguments Do Not Affect Our Conclusion While the foregoing explains why the trial court was correct, we briefly address some of Defendants’ remaining points. First, we reject Defendants’ argument Escamilla’s complaint inadequately pled she was subjected to an adverse employment action. For example, they argue: she inadequately pled she was investigated or placed on administrative leave in retaliation for a protected disclosure under Education Code section 44112, subdivision (e)(1) and (2); administrative leave is not a cognizable adverse employment action; and Escamilla did not adequately allege she was terminated. Defendants’ demurrer, which the parties tell us remains pending in the trial court, is not before us. Rather, we are reviewing the denial of Defendants’ anti-SLAPP motion, and at this stage, we are simply tasked with deciding whether Escamilla’s “claims . . . are based on” Defendants’ protected activities. (Baral, supra, 1 Cal.5th at p. 382; see also id. at p. 388 6 There may be exceptions. (See, e.g., Wilson, supra, 7 Cal.5th at p. 896 [“[T]he decision to hire or fire an employee who is vested with ultimate authority to determine a news organization’s message might well have a substantial effect on the organization’s ability to speak as it chooses on matters of public concern.”].)

12 [traditional purpose of an anti-SLAPP motion is “ ‘ “to reach certain kinds of defects in a pleading that are not subject to demurrer” ’ ”].) To make that decision, it is enough for us to recognize Escamilla’s retaliation claims—meritorious or otherwise7—are premised upon alleged adverse employment actions such as “forced retirement, forced administrative leave, and dismissal.” They are not based on speech or activity protected by the anti-SLAPP statute. Second, the parties dispute whether Escamilla adequately pled Defendants’ decision to investigate her and their issuance of notices informing her of their intent to dismiss her were adverse employment actions. For purposes of this appeal, we take Escamilla at her word she relies upon those as additional adverse employment actions supporting her claims. (See Bonni, supra, 11 Cal.5th at p. 1017, fn. 5 [relying in part upon the plaintiff’s opposition to the anti-SLAPP motion to determine basis of the plaintiff’s claims].) Nevertheless, we do not agree with Defendants’ argument those adverse employment actions are protected by the anti-SLAPP statute. As to the investigation, the decision to investigate Escamilla is the operative adverse employment action. While “statements and writings . . . made in connection with” an internal investigation can be protected under section 425.16, subdivision (e)(2), the decision to investigate and the overall investigation are not. (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544 [oral and written statements in connection with an internal investigation 7 We express no opinion on the merits of Escamilla’s claims or the parties’ arguments on that score.

13 were protected]; see also Laker, supra, 32 Cal.App.5th at pp. 773– 774 [the plaintiff alleged the decision to investigate, not statements made during the investigation, was retaliatory].) As to the notices, Defendants’ decision to terminate Escamilla’s employment is the operative adverse employment action. Defendants may have used written words to communicate that decision to Escamilla via the notices, but for the same reasons we explained above, that does not transform the termination decision itself into speech protected by the anti- SLAPP statute. (See Park, supra, 2 Cal.5th at p. 1068 [that “tenure decision may have been communicated orally or in writing . . . does not convert [the plaintiff’s] suit to one arising from such speech”].) Defendants have not met their burden to show Escamilla’s claims are premised upon any protected activity. We therefore affirm the trial court’s denial of their anti-SLAPP motion. DISPOSITION The judgment is affirmed. Escamilla is entitled to costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1)–(2).)

RICHARDSON, J.

WE CONCUR:

LUI, P. J.

CHAVEZ, J.