63 Cal.App.5th 776
Cal. Ct. App.2021Background
- Junnie Verceles (Filipino, ~46) was a LAUSD teacher since 1998; on Dec. 1, 2015 he was removed from class and placed on paid reassignment (“teacher jail”) pending an investigation into alleged physical misconduct with a student.
- He remained on paid suspension for over three years, could not teach or pursue professional development, and learned the allegation involved grabbing/shoving a student and throwing a backpack.
- While the investigation was ongoing, Verceles filed a DFEH discrimination complaint in Nov. 2016; the Board voted to terminate him on Mar. 13, 2018.
- In Mar. 2019 Verceles sued under FEHA for age (disparate impact), race/national origin (disparate impact), and retaliation (for his DFEH complaint). LAUSD filed a special motion to strike under CCP §425.16 (anti‑SLAPP); the trial court granted the motion and later awarded LAUSD $44,800 in attorney fees. Judgment entered; Verceles appealed.
- The Court of Appeal reversed: it held Verceles’s FEHA claims did not arise from protected petition/speech activity under §425.16 and reversed the fee award, remanding with directions to deny the special motion to strike.
Issues
| Issue | Verceles' Argument | LAUSD's Argument | Held |
|---|---|---|---|
| Timeliness / adequacy of notice of appeal | Appeal filed within 180 days; notice identified order granting anti‑SLAPP and fee order. | Appeal untimely (60‑day rule) or notice did not clearly identify anti‑SLAPP order. | Appeal timely (no proof of service of notice of entry); notice liberally construed and adequate. |
| Do FEHA discrimination/retaliation claims "arise from" protected activity under §425.16(e)? | Claims rest on adverse employment actions (reassignment/termination), not on investigation/statements; investigation is evidentiary context only. | Claims arise from the official investigation, its statements, and related conduct, so are protected. | Claims do not arise from protected petition/speech; the decisions to reassign/terminate are not themselves protected even if made during an official investigation. |
| Is the investigation/"teacher jail" conduct protected as expressive or petitioning activity (§425.16(e)(4))? | Not inherently expressive or petitioning conduct; no intent/likelihood to convey a particularized message; staffing decisions not a protected constitutional right. | Investigation and administrative leave communicate the District's protection of students and further public interest, thus protected. | Not protected: the conduct is not inherently expressive, and participation in statutorily prescribed discipline procedures does not transform investigatory staffing/leave decisions into petitioning/speech. |
| Attorney fees under §425.16(c)(1) | Opposed fee award. | Entitled to fees after prevailing on anti‑SLAPP motion. | Fee award reversed along with anti‑SLAPP dismissal because the complaint should not have been stricken; matter remanded to deny the special motion. |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (2016) (two‑step anti‑SLAPP framework and plaintiff’s burden to show probability of prevailing)
- Park v. Board of Trustees of California State University, 2 Cal.5th 1057 (2017) (distinguishing liability‑creating decisions from communications that merely provide evidence; ultimate decisions not automatically protected)
- Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (2019) (limits on treating staffing/termination decisions as protected speech; expressive‑conduct analysis)
- Navellier v. Sletten, 29 Cal.4th 82 (2002) (anti‑SLAPP principles that only claims arising from protected activity and lacking minimal merit are stricken)
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (2011) (anti‑SLAPP standards)
- Guz v. Bechtel National Inc., 24 Cal.4th 317 (2000) (elements of disparate impact discrimination claims)
- Jeffra v. California State Lottery, 39 Cal.App.5th 471 (2019) (contrasting view that an investigation itself could be the adverse action; Court of Appeal declined to follow this approach)