Filed 11/26/19 Turnbull v. Oro Grande School Dist. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

DAWN D. TURNBULL,

Plaintiff and Appellant,

v.

ORO GRANDE SCHOOL DISTRICT et al.,

Defendants and Appellants.

E068794

(Super.Ct.No. CIVDS1603896)

OPINION

APPEAL from the Superior Court of San Bernardino County. David S. Cohn, Judge. Affirmed.

Law Office of Robert D. Conaway and Robert D. Conaway, for Plaintiff and Appellant.

Thompson & Colegate and Susan Knock Beck and Michael J. Marlatt, for Defendants and Appellants.

I.

INTRODUCTION

Plaintiff and appellant, Dawn D. Turnbull, sued her former employer, defendants and appellants, the Oro Grande School District (OGSD), and its superintendent, Heather Griggs (Defendants) for retaliation, violating her civil rights, and unlawfully disclosing her medical information. Defendants moved to strike her complaint as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16, the anti-SLAPP statute, on the ground that Turnbull’s claims arose from Defendants’ protected activity of investigating her alleged misconduct. The trial court denied the motion, finding Turnbull’s claims did not arise from protected activity as required by the anti-SLAPP statute. The trial court then denied Turnbull’s request for attorney fees and costs associated with opposing the motion on the ground the motion was not frivolous.

Both parties appeal. We conclude the trial court properly found that Turnbull’s claims did not arise from protected activity and affirm its ruling denying Defendants’ anti-SLAPP motion. We dismiss Turnbull’s appeal of the trial court’s denial of her request for attorney fees and costs for lack of jurisdiction.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts
B.
Turnbull worked for OGSD as a student data support analyst from 2011 until her termination in January 2016. OGSD’s superintendent, Griggs, was Turnbull’s indirect supervisor. While at OGSD, Turnbull, whose stepchild attends a Lucerne Valley Unified School District (LVUSD) school and whose children previously attended LVUSD schools, was elected to serve on LVUSD’s Board of Trustees (the Board). Throughout her tenure on the Board, Suzanne Davis was LVUSD’s superintendent.

As a Board member, Turnbull sought to hold Davis “accountable.” In June 2015, Turnbull voted against a proposed increase in Davis’s income package. In Turnbull’s view, Davis improperly cited an unidentified “‘new regulation’” to justify allocating funds from LVUSD’s budget into her salary. Turnbull objected to Davis’s alleged misuse of these funds, and voiced other criticisms of Davis’s recommendations and the Board’s decisions. Turnbull told Davis there was no such new regulation justifying an increase in her salary, which angered Davis.

About a month later, Turnbull e-mailed another Board member with information she obtained that confirmed Davis’s raise was not appropriate. Davis learned about this e-mail and became angry.

Davis and Griggs, who are friends, began to resent Turnbull for her scrutiny because they were used to “getting [their decisions] rubbered stamped.” They both perceived Turnbull as encroaching on their power, and believed that she “had to be made an example of.” Griggs and Davis “team[ed] up to punish a critic of their administrative power,” and agreed to try to get Turnbull fired from OGSD.

In mid-July 2015, Turnbull’s immediate supervisor, Nelda Colvin, told Turnbull to “be careful,” because Griggs and Davis were “in cahoots in trying to get rid of [her].” Colvin told Turnbull that Griggs was trying to prove that Turnbull’s involvement with the Board was negatively affecting her job performance at OGSD.

At the same time, Turnbull accessed LVUSD student data from the California Longitudinal Pupil Achievement Data System (CALPADS) using her OGSD login information. From the CALPADS data, Turnbull learned that LVUSD students had not received federal lunch program benefits because LVUSD had unlawfully misclassified its students, including her children and stepchild. Turnbull believed the data also showed Davis had not properly accounted for the program’s federal funds.

On July 31, 2015, Griggs asked Turnbull to come to her office. Griggs informed Turnbull that she was being put on administrative leave for impermissibly accessing confidential LVUSD student data from CALPADS, which is against OGSD rules. Griggs learned from Davis that Turnbull accessed the CALPADS data. Griggs and her colleagues told Turnbull she would remain on leave with pay pending the outcome of their investigation into her alleged access of confidential CALPADS information.

Turnbull, however, believed she was allowed to access the CALPADS information in her capacity as Board member. Turnbull also thought Griggs and Davis falsely accused her of unlawfully accessing the CALPADS data in violation of OGSD rules as an excuse to procure her suspension.

After the meeting, Turnbull saw Colvin crying in her office. Colvin told Turnbull that Davis had given Griggs “some paperwork to ‘get [Turnbull] fired.’” Turnbull therefore believed Griggs had placed her on administrative leave as a “favor” to Davis.

About a week later, on August 4, 2015, Turnbull e-mailed OGSD an off-work note from her physician, which stated Turnbull was “‘medically disabled’” and unable to return to work until September 21, 2015. In response, OGSD put Turnbull on sick/vacation leave instead of paid administrative leave.

On August 13, 2015, while Turnbull was out on medical leave, Davis asked Griggs for information to “undermine” Turnbull. Griggs sent Turnbull’s off-work note to Davis so she could use it to suggest that Turnbull was not fit to serve on the Board. Davis, in turn, forwarded the note to a LVUSD volunteer, who then posted on social media that Turnbull “‘was about to get fired but went out on stress leave instead.’”

While on leave, Turnbull filed a workers’ compensation claim. But, as “part of an ongoing retaliatory scheme” to force Turnbull to exhaust her paid leave benefits, OGSD never processed the claim. OGSD refused to do so in order to “economically punish” Turnbull and force her separation from OGSD by limiting the amount of days she could take off, thereby “accelerat[ing] OGSD’s ability to terminate her.”

Turnbull’s physician extended her medical leave until she exhausted all of her paid leave options on January 13, 2016. Turnbull would not have exhausted her leave had OGSD processed her workers’ compensation paperwork.

Turnbull was terminated on January 13, 2016. The next day, OGSD sent Turnbull a letter explaining that she had been removed from OGSD’s list of active employees and was eligible for re-hire if her physicians cleared her to return within the next 39 months. Turnbull, however, refused to return to OGSD because of a perceived hostile work environment.

Turnbull filed a “claim for damage[s]” against OGSD and Griggs for her “wrongful discharge.” In the claim, Turnbull alleged defendants unlawfully: (1) put her on administrative leave, then medical leave, instead of providing her with workers’ compensation benefits; (2) refused to process her workers’ compensation claim request; (3) forced her to exhaust her leave benefits; and (4) wrongfully terminated her. The claim was rejected as to OGSD, but not Griggs. Turnbull believed her claim was partially denied in retaliation for her activities as a Board member.

C. First Amended Complaint
D.
Turnbull’s operative first amended complaint (FAC) alleged five causes of action: (1) retaliation under Labor Code section 98.6; (2) retaliation under Labor Code section 1102.5; (3) violation of her civil rights under 42 U.S.C. section 1985(3); (4) public disclosure of personnel and medical matters in violation of Civil Code section 1798.53; and (5) violation of her civil rights under 42 U.S.C. section 1983. Turnbull’s third and fourth causes of action alleged defendants unlawfully disclosed her private medical information to Davis. Her remaining claims are based largely on the following allegations.

Turnbull alleged Griggs and Davis disapproved of her Board activities, her opposing Davis’s raise, her questioning Davis’s decisions and recommendations, and her reporting that LVUSD had unlawfully misclassified its students. In response, Griggs and Davis agreed to try to get Turnbull fired from OGSD and removed from the Board. Through Griggs, OGSD (1) put Turnbull on administrative leave without due process, (2) denied her “claim for damages”, (3) failed to process her workers’ compensation paperwork, (4) denied her benefits, (5) forced her to exhaust her leave benefits, and (6) wrongfully terminated her.

E. Defendants’ Anti-SLAPP Motion
F.
Defendants filed an anti-SLAPP motion in which they argued Turnbull’s claims were premised on OGSD’s placing her on an administrative leave while they investigated the CALPADS issue. Defendants asserted Turnbull’s FAC should be stricken because “a public entity . . . investigating [an] employee’s alleged misconduct in connection with public employment is protected activity” under section 425.16, subdivision (e).

In her opposition to the anti-SLAPP motion, Turnbull sought attorney fees and costs under section 425.16, subdivision (c)(1) on the ground the motion was frivolous.

The trial court denied Defendants’ anti-SLAPP motion and Turnbull’s request for fees and costs. The court reasoned that Defendants’ conduct was not protected activity because the “gravamen of this action is wrongful termination based upon pretext, not the fact that an investigation was commenced.” Nonetheless, the court found that Turnbull was not entitled to fees and costs because Defendants’ anti-SLAPP motion was “a good faith colorable motion.”

Both parties timely appealed.

III.

DISCUSSION

Defendants contend the trial court erred by denying their anti-SLAPP motion, and Turnbull contends the trial court erred by denying her request for attorney fees and costs associated with opposing the motion. We reject the parties’ contentions and affirm the trial court’s rulings.

A. The Trial Court Properly Denied Defendants’ Anti-SLAPP Motion
B.
Defendants asserted Turnbull’s claims arose from their protected activity of investigating the CALPADS issue. We conclude the FAC did not arise from protected activity because Defendants’ other, unprotected activities comprise the gravamen of Turnbull’s claims.

1. Standard of Review
2.
We apply the de novo standard of review. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) We conduct an independent review of the trial court’s ruling on an anti-SLAPP motion. (Ibid.) We review the entire record to determine whether the parties satisfied their respective burdens under section 425.16. (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 622.) In particular, we look to the pleadings and supporting and opposing affidavits that state the acts upon which the liability or defense is based. (§ 425.16, subd. (b)(2); Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

3. Anti-SLAPP Principles
4.
The anti-SLAPP statute applies to any cause of action against a defendant “arising from any act of that person in furtherance of the person’s right of petition or free speech.” (§ 425.16, subd. (b)(1).) The anti-SLAPP statute protects against the use of the judicial system to chill the constitutionally-protected right to make statements or writings before judicial or other official proceedings, and in connection with an issue under consideration or review by a judicial body or other legally authorized official proceeding. (§ 425.16, subd. (e).)

Anti-SLAPP motions are analyzed in two steps. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) At the first step, the court decides whether the action arises from “a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” as defined in section 425.16, subdivision (e). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) At the second step, we determine whether the plaintiff is likely to succeed on the merits. (Ibid.)

In assessing the first step, we determine whether a defendant’s acts underlying the plaintiff’s cause of action were in furtherance of the defendant’s right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The focus is on the principal thrust or gravamen of the causes of action, i.e., the allegedly wrongful and injury-producing conduct that provides the foundation for the claims. (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319.) In determining whether a cause of action arises from protected activity “‘the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity. [Citations.]’” (Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1284.)

For the anti-SLAPP statute to apply, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) A claim therefore arises from protected activity only if “that activity underlies or forms the basis for the claim.” (Park, supra, 2 Cal.5th at p. 1062.) “If conduct that supplies a necessary element of a claim is protected, the defendant’s burden at the first step of the anti-SLAPP analysis has been carried, regardless of any alleged motivations that supply other elements of the claim.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 892.)

If the defendant establishes that the challenged claim arises from protected activity, “the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) But if the defendant fails to succeed on the first step of the anti-SLAPP analysis, we need not address the merits. (Ibid.)

5. Turnbull’s Claims Did Not Arise from Protected Activity
6.
We begin by noting Defendants contend several of Turnbull’s allegations are not true and that her version of events is “chronologically impossible.” Defendants emphasize that they “should be able to supplement the facts” because the FAC rests on “circular, chaotic and artfully incomplete allegations” and a “selective recitation of the facts” that “‘immunize[s]’” the FAC from the anti-SLAPP statute.

But “we [must] accept as true [the plaintiff’s] pleaded facts.” (Young v. Tri-City Healthcare Dist., supra, 210 Cal.App.4th at p. 54.) When determining whether the FAC arose from protected activity, we focus primarily on the FAC’s allegations as pled, and consider Defendants’ evidence only “to the extent [it] might give meaning to the words in the complaint.” (Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 849; see also Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1267, fn. 2 [explaining courts consider the defendant’s evidence submitted with an anti-SLAPP motion only “to the extent it defeats as a matter of law the evidence submitted by” the plaintiff].) This is because the focus at the first step of the anti-SLAPP analysis is on “what is pled—not what is proven.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, 942.)

Defendants argue Turnbull’s claims are based entirely on the July 31, 2015, meeting during which OGSD informed her that she was being put on administrative leave and the resulting investigation into the CALPADS issue. Defendants thus assert the FAC arose from Defendants’ protected activity, which Defendants characterize as a public entity investigating a public employee’s alleged misconduct.

Although OGSD’s investigation into Turnbull was protected activity (see Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1383), we disagree that Turnbull’s claims arose from the investigation. As outlined below, the gravamen of Turnbull’s first, second, and fifth claims is that Defendants took a series of retaliatory, unprotected actions independent of the investigation that culminated in her allegedly wrongful termination, and the gravamen of her third and fourth claims is that Defendants unlawfully released her medical information.

a. Turnbull’s third and fourth causes of action did not arise from Defendants’ protected activity of investigating her
b.
Turnbull’s third and fourth causes of action allege Defendants unlawfully disseminated her private medical information to Davis. Defendants’ privately disclosing Turnbull’s private medical information in an alleged effort to humiliate her is not protected activity. (See Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1174 [holding purely private speech is protected activity only if it relates to a matter of public concern]; see also Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 131 [holding private matter is converted into “‘“issue of public interest”’” under anti-SLAPP statute only if it is “‘“something of concern to a substantial number of people”’”].)

Contrary to Defendants’ implication, these claims had nothing to do with OGSD’s putting Turnbull on administrative leave while investigating the CALPADS issue. Indeed, neither cause of action mentions the July 31 meeting, the investigation, Turnbull’s administrative leave, or anything about her employment. The trial court therefore did not err when it concluded that Turnbull’s third and fourth causes of action did not arise from protected activity because neither implicates Defendants’ speech or petitioning activity in any way. (See Turnbull v. Lucerne Valley Unified School District (2018) 24 Cal.App.5th 522, 530-531 [holding in a related case that the defendants’ allegedly providing third parties with Turnbull’s medical information was not protected activity].)

c. Turnbull’s first, second, and fifth causes of action did not arise from Defendants’ protected activity of investigating her alleged misconduct
d.
Turnbull’s remaining claims similarly do not allege Defendants’ injury-producing conduct was OGSD’s investigating her alleged misconduct. Instead, the principal thrust of the first two causes of action is that Defendants retaliated against Turnbull by: (1) putting her on administrative leave, which caused her to use leave benefits; (2) refusing to process her workers’ compensation paperwork, thereby forcing her to exhaust her benefits; (3) denying her various benefits; (4) denying her claim for damages; and (5) wrongfully terminating her. The fifth cause of action repeats these allegations, and further alleges Defendants violated Turnbull’s civil rights by not providing her sufficient due process before putting her on administrative leave. For the reasons that follow, we conclude the gravamen of Turnbull’s first, second, and fifth causes of action did not arise from Defendants’ protected activity.

It is “relatively unusual” for a defendant to show that a plaintiff’s retaliation claim arises from protected activity. (Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 891.) To do so, the defendant “must show that the complained-of adverse action, in and of itself, is an act in furtherance of its speech or petitioning rights. Cases that fit that description are the exception, not the rule.” (Id. at p. 890.)

Park, supra, 2 Cal.5th 1057, is illustrative. In Park, the plaintiff, a California State University (CSU) professor, alleged CSU denied him tenure based on his national origin. (Id. at p. 1061.) CSU filed an anti-SLAPP motion, arguing the plaintiff’s complaint arose from protected activity—CSU’s decision to deny him tenure and communications made during the deliberations leading up to that decision. (Ibid.) The court explained that, in retaliation cases, a claim may be stricken “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.) The Supreme Court held the plaintiff’s complaint did not arise from protected activity because it did not turn on any proceedings or statements, “but only on the denial of tenure itself and whether the motive for that action was impermissible.” (Id. at p. 1068.)

Park, supra, 2 Cal.5th at p. 1066, cited with approval Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176. In Nam, a University of California (UC) medical resident sued UC for discrimination, harassment, and wrongful termination. (Id. at p. 1178.) UC filed an anti-SLAPP motion in which it asserted the plaintiff’s claims arose from UC’s protected activity of issuing her written warnings, investigating her alleged misconduct, and notifying her in writing of her termination. (Id. at p. 1192.) The Court of Appeal disagreed and concluded the plaintiff’s claims were based on UC’s retaliatory conduct, which included removing her from the workplace, soliciting complaints about her from her coworkers, and terminating her. (Ibid.) “Nam illustrates that while discrimination may be carried out by means of speech . . . and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech.” (Park, supra, 2 Cal.5th at p. 1066.)

Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, further illustrates this point. There, the plaintiff sued a landlord for disability discrimination for failing to accommodate a tenant’s disability and unlawful eviction. (Id. at p. 1273.) The landlord filed an anti-SLAPP motion in which it alleged the suit arose out of the landlord’s protected activity of communicating with the tenant and the rent control board and filing an unlawful detainer action to evict the tenant. (Id. at 1284.) The court disagreed because the complaint alleged the landlord’s injury-causing conduct was failing to accommodate the tenant. (Ibid.) The court reasoned that the landlord’s speech— the unlawful detainer action and correspondence with the tenant and the rent control board—was only evidence of the landlord’s alleged disability discrimination, not the basis for the plaintiff’s lawsuit. (Ibid.)

Okorie v. Los Angeles Unified School District (2017) 14 Cal.App.5th 574 (Okorie), provides an example of when a defendant-employer’s protected speech forms the basis for a claim such that the claim arises from protected activity. In Okorie, the plaintiff sued his employer and supervisors for various claims, including retaliation, which stemmed from adverse employment actions he suffered and statements his colleagues made before or during an investigation into a molestation charge against the plaintiff. (Id. at pp. 581-582.) The court held the plaintiff’s complaint was based on protected activity because the defendants’ speech was “explicitly alleged to be the injury-producing conduct” underlying all of the plaintiff’s claims. (Id. at p. 593.)

Miller v. City of Los Angeles, supra, 169 Cal.App.4th 1373, which Defendants relied on exclusively in the trial court, involved a similar situation. In Miller, the plaintiff’s employer, a public entity, conducted an investigation into the plaintiff and determined that he had engaged in misconduct that warranted his termination. (Id. at p. 1376.) The court concluded his claims for defamation and intentional infliction of emotional distress arose from protected activity because they were premised entirely on the investigation and the resulting findings and report—the defendants’ speech. (Id. at p. 1383.)

Similarly, in Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 610-611 (Medina), a county agency employee sued the agency and her supervisors for retaliation, alleging they improperly investigated her and prepared a “false report.” The defendants moved to strike the claim, arguing that it turned on defendants’ protected activity of investigating and preparing the report, which was done at the direction of county counsel. (Id. at pp. 606-607.) The court agreed because, “[a]bsent the investigation and report, nothing of substance exists upon which to base a retaliation claim against them.” (Id. at p. 611.)

Here, by contrast, the gravamen of Turnbull’s first, second, and fifth claims is not based on Defendants’ speech or other protected activity. Like the plaintiffs in Park and Nam, those claims are predicated entirely on OGSD’s allegedly retaliatory employment decisions that culminated in her wrongful termination—not defendants’ speech. Nowhere in the FAC did Turnbull allege that OGSD’s investigation of her alleged misconduct itself caused her injuries. (See Medina, supra, 152 Cal.App.4th at pp. 610-611.) And, unlike the plaintiffs in Miller, Medina, and Okorie, Turnbull did not allege she was injured by statements Defendants made related to the investigation. (See Miller v. City of Los Angeles, supra, 169 Cal.App.4th 1383; Medina, supra, at pp. 610-611; Okorie, supra, 14 Cal.App.5th at pp. 581-582; see also Hansen v. California Dept. of Corrections & Rehab. (2008) 171 Cal.App.4th 1537, 1544 [holding plaintiff’s claims arose from protected activity because they were based on written and oral statements made during or about an internal investigation].)

This action does not involve a situation where, absent Defendants’ speech, “nothing of substance exists upon which to base a retaliation claim against them.” (Medina, supra, 152 Cal.App.4th at p. 611.) Turnbull alleged she was harmed by Defendants’ purportedly retaliatory adverse employment actions, including putting her on leave without due process, denying her tort claim, denying her various benefits, forcing her to exhaust her leave benefits, refusing to process her workers’ compensation paperwork, and wrongfully terminating her. Without more, none of this constituted protected activity under section 425.16, subdivision (e). Turnbull is suing Defendants for the harm those actions allegedly caused her, not because of any alleged harm caused by Defendants’ investigation into the CALPADS issue or their statements made related to the investigation. Thus, OGSD’s investigation is, at best, only evidence of Defendants’ alleged retaliatory intent. (Park, supra, 2 Cal.5th at p. 1066; Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC, supra, 154 Cal.App.4th at p. 1284.) We therefore reject Defendants’ contention that Turnbull’s claims arose from Defendants’ protected activity.

Defendants’ arguments to the contrary are unavailing. Defendants effectively do not attempt to explain how the FAC’s allegations show that Turnbull’s claims arose from protected activity. Instead, Defendants focus on the evidence to prove “what really happened.” Defendants assert the evidence shows Turnbull’s claims are, in fact, based on Defendants’ investigation, and the FAC impermissibly tries to avoid that conclusion “through artful pleading mechanisms.” Again, we must focus on the FAC, not the evidence, of the first step of the anti-SLAPP analysis. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 942.)

Defendants rely on Scott v. Metabolife International, Inc. (2004) 115 Cal.App.4th 404, 414 (Scott) and Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308 (Fox Searchlight), but neither supports Defendants here. In both cases, the courts held that a “mixed” cause of action that contains allegations of protected and unprotected activity nonetheless may be stricken in its entirety under the anti-SLAPP statute if its “principal thrust” or “gravamen” turns on defendants’ protected activity. (Scott, supra, at p. 414; Fox Searchlight, supra, at p. 308.) As we explained above, that is not the case here, because the gravamen of Turnbull’s claims does not rest on Defendants’ protected activity.

Neither case helps Defendants on the merits. Scott was a personal injury and false advertising case, where the plaintiff alleged the defendants’ product and misleading advertising—neither of which was protected activity as a matter of law—harmed her. (Scott, supra, 115 Cal.App.4th at pp. 417-419.) Fox Searchlight similarly involved the defendant’s unprotected activity of disclosing privileged and confidential information about her former employer. (Fox Searchlight, supra, 89 Cal.App.4th at pp. 298-299.) Neither Scott nor Fox Searchlight provides any support for Defendants.

Defendants also contend Okorie supports their contentions, but as they acknowledge, the plaintiff’s complaint in Okorie was based “on a handful of decisions . . . and a wide array of allegedly injury-causing statements and communicative conduct by [the defendants].” (Quoting Okorie, supra, 15 Cal.App.5th at p. 593.) The defendants’ speech was “integral to” the plaintiff’s complaint because “the bulk” of the alleged adverse employment actions the defendants subjected the plaintiff “were [the defendants’] statements or communicative conduct.” (Okorie, supra, at p. 592.) Therefore, the plaintiff’s claims arose from the defendants’ protected activity. (Ibid.)

Defendants appear to argue that, even if they did not meet their burden of showing Turnbull’s claims arose from protected activity, their anti-SLAPP motion nonetheless should have been granted because the FAC was subject to demurrer. Defendants ask us to determine whether the FAC states a claim and, if it does not, strike the FAC under the anti-SLAPP statute. We decline to do so for two reasons. First, we assess the sufficiency of a complaint only at the second step of the anti-SLAPP analysis, which we do not reach because the FAC does not arise from defendants’ protected activity. (See Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [explaining a plaintiff can succeed on second step of anti-SLAPP analysis if it can “‘“state[] and substantiate[] a legally sufficient claim”’ [Citations.]”].)

Second, we are unaware of any authority that supports Defendants’ position that we, an appellate court, may sustain a demurrer (or strike a complaint) in the first instance when the issue is raised for the first time on appeal.

Because we conclude the trial court did not err in finding Turnbull’s claims did not arise from protected activity, we affirm its order denying Defendants’ anti-SLAPP motion. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89 [holding courts need not address the plaintiff’s probability of prevailing on the merits if the complaint does not arise from protected activity].)

C. This Court Lacks Jurisdiction Over the Trial Court’s Order Denying Turnbull’s Request for Attorney Fees and Costs
D.
The parties filed their briefs assuming the trial court’s order denying Turnbull’s request for attorney fees and costs is appealable. We requested and received supplemental briefing given the split of authority on the issue. (Compare Doe v. Luster (2006) 145 Cal.App.4th 139, 145 (Doe) [holding interlocutory order awarding or denying fees in anti-SLAPP context is not appealable] with Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 273-274 (Baharian-Mehr) [holding interlocutory order awarding or denying fees in anti-SLAPP context is appealable].)

In their supplemental briefs, Turnbull asserts we should follow Baharian-Mehr, whereas Defendants urge us to follow Doe. We conclude Doe is better reasoned and, accordingly, we find the trial court’s order denying Turnbull’s request for attorney fees and costs was not appealable.

In Doe, the plaintiff moved for attorney fees and costs under the anti-SLAPP section 425.16, subdivision (i) after successfully opposing the defendant’s anti-SLAPP motion. (Doe, supra, 145 Cal.App.4th at p. 142.) The trial court denied the motion, and the plaintiff appealed. (Ibid.)

The Second District, Division Seven held that it lacked jurisdiction over the plaintiff’s appeal. (Doe, supra, 145 Cal.App.4th at pp. 142, 145.) The court observed that the anti-SLAPP statute provides that “‘[a]n order granting or denying a special motion to strike shall be appealable under [s]ection 904.1,’” but “[n]either that statutory provision nor any other authorizes an immediate appeal from . . . the denial of attorney fees to the prevailing party opposing a special motion to strike.” (Doe, supra, 145 Cal.App.4th at pp. 145-146, quoting § 425.16, subd. (i).) The court reasoned that the “clear, limited language” of the anti-SLAPP statute showed that an interlocutory order denying a request for fees under the statute is not appealable. (Id. at p. 147.)

Our colleagues in the Fourth District, Division Three disagreed with Doe in Baharian-Mehr, supra, 189 Cal.App.4th 265. There, the trial court denied the defendant’s anti-SLAPP motion and, in the same order, granted the plaintiff’s request for attorney fees and costs incurred when opposing the motion because it was frivolous. (Id. at p. 274.) The Baharian-Mehr court agreed with Doe that a “separate attorney fee order” issued after a trial court denies an anti-SLAPP motion is not appealable. (Ibid.) But the court held that an attorney fee order is appealable if cross-appealed along with the underlying order granting an anti-SLAPP motion. (Id. at p. 275.) The court reasoned that when “the issue of whether the anti-SLAPP motion should have been granted is properly before the appellate court, it would be absurd to defer the issue of attorney fees until a future date, resulting in the probable waste of judicial resources.” (Ibid.)

This court has not addressed the issue directly, but touched on it in City of Colton v. Singletary (2012) 206 Cal.App.4th 751 (Singletary). In Singletary, the trial court partially granted the defendant’s anti-SLAPP motion and awarded the defendant $5,830 in attorney fees and costs. (Id. at p. 757.) While noting the disagreement between Doe and Baharian-Mehr, we avoided having to pick a side because the attorney fee order was appealable under the collateral order doctrine, which provides that an order collateral to the merits that involves the payment of money is directly appealable. (Id. at pp. 781-782.)

In reaching that conclusion, however, we observed that section 904.1, which lists appealable judgments and orders, “does not include an award of attorney fees.” (Singletary, supra, 206 Cal.App.4th at p. 781.) We therefore concluded that “based upon the plain language of section 904.1, it appears that the [trial court’s] award of attorney fees [to the defendant] is not directly appealable.” (Ibid.)

Although we did not directly decide the issue, Singletary suggests that an order granting or denying a fee request associated with an anti-SLAPP motion is appealable only in limited circumstances not present here. For example, an order denying attorney fees is appealable if a defendant was denied fees for bringing a successful anti-SLAPP motion because it would be appealable as an order made after a final judgment. (§ 904.1, subd. (a)(2).) An order granting a plaintiff fees for opposing a frivolous anti-SLAPP motion is likewise appealable by the defendant if the fees exceed $5,000, because the award qualifies as a sanction. (§ 904.1, subd. (a)(12); Doe, supra, 145 Cal.App.4th at p. 146.)

But section 904.1, subdivision (13)—and section 425.16, subdivision (i)—allow an appeal from only “[a]n order granting or denying a special motion to strike.” Singletary is more in line with Doe than Baharian-Mehr, because it relied on section 904.1’s plain language in determining whether the attorney fee order was appealable.

The court in Baharian-Mehr, however, rejected Doe’s plain-language interpretation on the grounds that it would lead to absurd results the Legislature never intended and waste judicial resources. But, as Doe observed, the Legislature added section 425.16, subdivision (i) (which is identical to section 904.1, subdivision (13)) to authorize appeals from an order granting or denying an anti-SLAPP motion to ensure a defendant may promptly “‘hav[e] his or her right to free speech vindicated’” without incurring litigation costs. (Doe, supra, 145 Cal.App.4th at p. 145.) “No such similar purpose is served by permitting an immediate appeal from an interlocutory order granting or denying attorney fees following the trial court’s ruling on a special motion to strike.” (Id. at p. 147.) Doe is therefore consistent with the Legislature’s intent underlying section 425.16, subdivision (i). Further, the Legislature’s including orders granting or denying an anti-SLAPP motion as an exception to the one final judgment rule (§ 904.1, subd. (13)) while omitting attorney fee orders related to an anti-SLAPP motion from section 904.1’s list of exceptions is further evidence that the Legislature did not intend to make the latter appealable. (See In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1411 [“‘“[T]he expression of certain things in a statute necessarily involves exclusion of other things not expressed.”’ [Citations.]”].)

“Under the one final judgment rule, “‘an appeal may be taken only from the final judgment in an entire action.”’ [Citations.]” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.) “Section 904.1 is a codification of the ‘one final judgment rule,’ and lists the exceptions to the rule.” (Singletary, supra, 206 Cal.App.4th at p. 780.) Because the one final judgment rule is a “‘fundamental principle of appellate practice,’” (In re Baycol Cases I & II, supra, at p. 756.) exceptions to it “‘should not be allowed unless clearly mandated.’” (Id. at p. 757, quoting Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 967, emphasis added.) Simply put, we are unaware of any authority, issued before or after Baharian-Mehr, that supports its creation of another exception to the one final judgment rule.

Whether Doe results in a waste of judicial resources, as the Baharian-Mehr court predicted, is not dispositive. Appellate courts retain the discretion to hear appeals from interlocutory orders denying or granting attorney fees. (Benton v. Benton (2019) 39 Cal.App.5th 212, 2019.) More importantly, whether an order should be appealable for reasons of judicial economy is “a question for the Legislature.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196.) The Legislature has made certain anti-SLAPP-related orders appealable (§ 425.16, subd. (i)) while making others non-appealable. (See Varian Medical Systems, Inc. v. Delfino, supra, at p. 195 [“[T]he Legislature expressly made the denial of an anti-SLAPP motion based on the section 425.17 exemption [for commercial speech] not appealable.”].) Whether other anti-SLAPP-related orders should be appealable for the sake of conserving judicial resources is for the Legislature to decide.

Two other courts have followed Baharian-Mehr but did so in passing. In Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 680 fn.2, the Second District, Division Three followed Baharian-Mehr, but did so in a footnote without any apparent argument from the parties on the issue or analysis beyond noting Doe’s split with Baharian-Mehr. (Ibid.) Similarly, in Workman v. Colichman (2019) 33 Cal.App.5th 1039, 1055 footnote 7, the Second District, Division Four, in a footnote, followed Baharian-Mehr—but without mentioning Doe or noting any argument from the parties. Notably, the Workman court observed that “[t]he anti-SLAPP statute does not make clear that [an order denying a request for attorney fees and costs for successfully opposing an anti-SLAPP motion] is an appealable order.” (Workman v. Colichman, supra, at p. 1055 fn. 7.) We do not find Chitsazzadeh or Workman persuasive because neither decision grappled with the issue presented by the split between Doe and Baharian-Mehr, and neither decision indicates that the parties briefed—or disputed—the issue. It thus appears the parties did not contest the courts’ appellate jurisdiction in either Chitsazzadeh or Workman.

In sum, we find Doe’s reasoning persuasive, consistent with the plain language of section 425.16, subdivision (i), and faithful to its underlying legislative intent. We therefore follow Doe and decline to follow Baharian-Mehr. Accordingly, we dismiss Turnbull’s appeal of the trial court’s order denying her request for attorney fees and costs for lack of jurisdiction. (See Doe, supra, 145 Cal.App.4th at p. 142; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297 [“The appealability of the judgment or order is jurisdictional and an attempt to appeal from a nonappealable judgment or order will ordinarily be dismissed.”].)

IV.

DISPOSITION

The trial court’s order denying defendants’ anti-SLAPP motion is affirmed. Turnbull’s appeal from the trial court’s order denying her request for attorney fees and costs is dismissed for lack of jurisdiction. Each party shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.