2018-00237361-CU-PO

Iris Perez vs. Los Rios Community College District

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Conway, David

Defendant Los Rios College Federation of Teachers Union’s (“Federation”) Motion to Strike the First Amended Complaint under the anti-SLAPP statute is unopposed and is granted.

On October 22, 2018, Judge Cadei granted the unopposed anti-slapp motion filed by Defendant Los Rios Community College District

This action arises from an incident where plaintiff Iris Perez, a student at Cosumnes River College, was kissed without her consent by her counselor.

Plaintiff filed her First Amended Complaint on July 27, 2018, against the District, Hoyt Fong (the counselor), and the Los Rios College Federation of Teachers Union (“Federation”), alleging seven causes of action for: (1) Unruh Civil Rights Act (as to the District and Fong); (2) Conspiracy (as to all Defendants); (3) IIED (as to the District and Fong); (4) Negligence (as to the District and Fong); (5) NIED (as to the District and Fong); (6) Gender Violence (as to the District and Fong); and (7) Assault (as to the District and Fong).

Plaintiff alleges she was a student at Cosumnes River College, a college of the District. (FAC ¶ 11.) Fong was a crisis counselor on campus. (FAC ¶ 12.) Beginning in the Fall of 2017, and continuing until early January 2018, Plaintiff saw Fong for crisis counseling. (FAC ¶ 13.) On January 2, 2018, at the end of a counseling session, Fong hugged Plaintiff and kissed her without
her consent. (FAC ¶ 16.) Plaintiff reported the incident to the Equity Officer, Alex Casereno, the Title IX Officer, Sue Slager, and the Vice Chancellor of Human Resources, Ryan Cox. (FAC ¶ 17.) Plaintiff contends she was then discouraged by Los Rios staff from pursuing her complaint, including by Cox, who asked her if she would drop her complaint against Fong after he informed her Fong had
resigned. (FAC ¶ 18.) On January 18, 2018, Plaintiff received a summary of the investigative report of findings, which substantiated Plaintiff’s allegations of gender discrimination. (FAC ¶ 19.) Plaintiff alleges HR failed to inform the campus community of Fong’s misconduct or the findings of the investigation.

(FAC ¶ 19.)

Plaintiff sues the LRCFT for “conspiracy” based on its alleged representation of Fong in instructing him to resign rather than to participate in the employer investigation, and by its allegation that the District did not affirmatively

announce the incident and investigation results to the public. (FAC, 39.) Specificaly, John Doe, a representative of Defendant LRCFT Union, allegedly informed Defendant Fong that Defendant LRCFT Union would not defend him again and instructed Defendant Fong to resign. (FAC, 36)

The Federation moves to strike the following the entire second cause of action for conspiracy and related allegations in the FAC pursuant to the anti-SLAPP statute at CCP § 425.16. In this motion, LRCFT has shown that plaintiff’s second cause of action for conspiracy explicitly seeks to impose liability on the Federation for protected District and Federation speech (and the right not to speak) in connection with (1) the District’s required government investigation into misconduct by a public employee, which is an official proceeding authorized by law and (2) the Federation’s representation of Fong as required by the California Educational Employment Relations Act (“EERA”). (California Govemment Code section 3540, et seq.)

Legal Standards

The California legislature enacted Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and causes of action that are brought to chill the valid exercise of the constitutional rights to free speech and to petition the government for redress of grievances. (See Rusheen v Cohen (2006) 37 Cal.4th 1048, 1055-1056.) “The analysis of an anti-SLAPP motion thus involves two steps. First, the court decides whether the defendant moving to strike has made a threshold showing that the challenged cause of action is one “arising from” protected activity. If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 [citations omitted].)

In order to sustain the initial burden on an anti-SLAPP motion, a defendant need only show that plaintiff’s lawsuit “arises from” defendant’s exercise of free speech or petition rights as defined in Section 425.16(e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) In other words, Defendants only need to make a prima facie showing that Plaintiff’s FAC “arises from” their constitutionally-protected free speech or petition activity. (Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Baral v. Schnitt (2016) 1 Cal. 5th 376, 396.) “While an anti-SLAPP motion may challenge any claim for relief founded on allegations of protected activity, it does not reach claims based on unprotected activity.” (Id. at 382.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Id.)

In order to satisfy the second prong, a plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) In considering the second prong, the court “accept[s] as true the evidence favorable to the plaintiff and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Id. citations omitted.) If the plaintiff’s showing is not

sufficient to sustain a favorable judgment, “the allegations supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5 376, 396.)

The acts forming the basis of Plaintiff’s second cause of action is based on (1) the protected speech/petition activities of the District and its employees, and (2) protected speech/petition activities of the Federation in representing its bargaining unit member Fong under Govemment Code section 3540, et seq. Section 425.16 defines an “act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” as: (1) Any written or oral statement or writing made before a legislative, executive, judicial proceeding, or any other official proceeding authorized by law; Code Civ.Proc. §425.16(e)(1); (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; Code Civ. Proc. §425.16 (e)(2). Section 425.16, subdivisions (e)( 1) and (e)(2) do not require a showing that the speech was regarding a public issue or issue of public interest. (Vergos v. McNeal (2007) 20 146 Cal.App.4th 1387, 1395.)

It is undisputed that Plaintiff reported to the District that her school crisis counselor

kissed her during a counseling session without her consent, and filed an
Unlawful Discrimination Complaint on January 10, 2018. It is further undisputed that
the District performed an internal investigation of Fong’s alleged misconduct, which
potentially constituted sexual assault or battery. As such, all statements during and in
connection with this investigation are protected under Section 425.16(e)(1) and (e)(2).
Plaintiff initiated a complaint with the District specifically

designed to prompt and induce the District to act against Fong. Indeed, Plaintiffs complaint specifically asked the District to “Remove Hoyt Fong from campus/district as 22 a remedy. (Exhibit 2.) This complaint was petitioning activity, and all statements in connection with responding to this complaint are protected activity under Section 24 425.16(e)(1) and (2). Moreover, the Court previous granted District’s anti-slapp motion. Therefore, any alleged act of conspiracy committed by Federation in furtherance of District’s investigation is also protected.

Communications and petitioning activity to educational institutions seeking to prompt disciplinary action, including termination, against an employee are part of an official proceeding authorized by law. (See Lee v. Pick (2005) 135 Cal.App.4th 89, 96; Brody v. Montalbano (1978) 87 Cal.App.3d 725, 731-735; Martin v. Kearney (1975) 51 Cal.App.3d 309.)

Federation has met its burden to show that plaintiff’s claims arise out of its statements during and in connection with the investigation of her complaint and are therefore protected under Section 425.16(e)(1) and (e)(2). Where, as here, defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. This “second step” has been described as a “summary-judgment-like procedure.” (Taus v. Loftus (2007) 40 Cal. 4th 683, 714.) Unless this analysis, the court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. (Oasis West Realty, LLC

v. Goldman (2011) 51 Cal.4th 811, 819-820 “[C]laims with the requisite minimal merit may proceed.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94.) However, Plaintiff has failed to file any opposition to the motion, therefore, she has not shown that she can prevail on a cause of action for conspiracy against Federation.

The motion to strike the 2nd cause of action for Conspiracy is granted. As this is the only cause of action alleged against Federation, the Federation is ordered dismissed from this action.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.