Opinion
A147300
06-28-2017
REED LEIFERMAN, Plaintiff and Respondent, v. KONOCTI UNIFIED SCHOOL DISTRICT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CV415133)
I.
INTRODUCTION
Appellant Konocti Unified School District (KUSD) appeals from the denial of its special motion to strike pursuant to California's anti-SLAPP statute (Code Civ. Proc., § 425.16) in response to respondent Reed Leiferman's (Leiferman) complaint alleging disability discrimination, failure to provide accommodation, and failure to engage in an interactive process related to his disability and termination from his teaching position. The trial court denied the motion, finding that although the first cause of action arose from protected activity, Leiferman had established a minimal likelihood of prevailing on the merits. The court found the second and third causes of actions did not arise from protected activity. We affirm the court's denial of the motion to strike the second and third counts on the same ground relied on by the trial court. However, we reverse on the first count because the allegations of that claim arose out of protected activities, and Leiferman cannot show a likelihood of prevailing on the merits due to the collateral estoppel effect of the administrative proceedings which terminated him as a teacher.
SLAPP is an acronym for "strategic lawsuit against public participation." All further statutory references are to the Code of Civil Procedure unless otherwise noted.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Unlike most cases that come before this court on an anti-SLAPP motion to strike, the record here is more fully developed because while this action was proceeding in the superior court, a simultaneous disciplinary proceeding against Leiferman occurred before the California Office of Administrative Hearings (OAH). (In the Matter of Disciplinary Proceeding to Dismiss: Reed Leiferman (April 15, 2016) OAH No. 2015090802.)
Leiferman was a teacher in the KUSD from 1986 to 1990, and 1996 until his termination in 2015. Leiferman has suffered from problems with his left ear since he was a teenager. His first workplace ear injury occurred in April 2010. He was teaching in his classroom when a fire alarm sounded harming his eardrum. Leiferman filed a workers' compensation claim stating his eardrum had been perforated by the fire alarm. He underwent one surgery in 2011 and another in 2012. In April 2013 a scheduled fire alarm sounded, which Leiferman claimed caused additional injury to his ear. He did not return to work until November 2013. At that time, Leiferman submitted a letter from his physician stating he could return to work full-time without any accommodations.
In April 2014, Leiferman sustained additional ear injuries due to an unannounced fire alarm. Leiferman was placed on medical leave and did not return to work until July 29, 2014.
Upon his return Leiferman requested an interactive meeting to discuss possible workplace accommodation to prevent future ear injuries. A meeting was held on August 1, 2014, where Leiferman requested advance warning of scheduled fire drills, for the alarm volume to be lowered in his classroom, and to be assigned to an area where the alarm does not sound. KUSD agreed to provide him advance notice of scheduled alarms and to reduce the alarm volume, but there was no location within the school free from alarm noise.
On August 20, 2014, Leiferman's physician sent a letter to KUSD requesting Leiferman be allowed to return to work and stating: "In order to prevent any further damage to [Leiferman's] ears, please consider any additional accommodations that Mr. Leiferman requests, such as informing him in advance of scheduled fire alarms and eliminating all exposure to bells, alarms, and other loud noises."
At the next interactive meeting on August 29, 2014, everyone agreed to continue with the current accommodations to advise Leiferman of scheduled alarm drills and to reduce the volume of alarms. After the meeting, Leiferman requested a transfer to the Lewis School as a further accommodation. Leiferman believed the Lewis School did not have bells and alarms. KUSD could not transfer Leiferman because there were no openings at the Lewis School, which only employed two teachers and a secretary. Also, Leiferman would still be exposed to fire alarms there because they are mandated by law in all school buildings and classrooms.
KUSD and Leiferman had a third interactive meeting on October 1, 2014, and both sides agreed to continue the accommodations then in place.
On October 10, 2014, the school had an unscheduled fire alarm due to a child pulling the alarm. When the alarm sounded, Leiferman put in earplugs and escorted his students from the classroom. Rather than ushering the students to the field as required, Leiferman returned to the classroom for several minutes. Leiferman then held a towel to his ear and claimed his ear was bleeding. The principal asked Leiferman to go to the office, where she then examined his ear. The principal had trained as a nurse in the United States Navy and had worked for several years at a Naval hospital. As a result of her medical training and experience, she was familiar with blood and she determined the substance on the outside of Leiferman's ear and on the towel was not blood. Another teacher at the school who saw Leiferman's ear and the towel also concluded the substance was not blood. Additionally, the school secretary, who had emergency medical technician training and has a child with a blood disorder, concluded the substance on the towel was not blood.
The principal asked Leiferman if she should call an ambulance and he declined. Leiferman did not seek medical attention for his ear.
The school's vice principal went to cover Leiferman's class. When she arrived in the classroom, the vice principal noticed one of Leiferman's desk drawers was open and in it she saw a bottle labeled "fake blood."
KUSD hired an investigator to interview Leiferman about the incident. Leiferman told the investigator that he had been upset because when he was on leave, someone had taken his laptop computer and notebook from his classroom. He developed a plan to plant the fake blood in his desk so KUSD would conclude he was faking his injury and he could take the district to court. This would create a basis for him to sue the district. He said he could also "set a trap for a rat" and discover who had taken his laptop.
After the incident, Leiferman returned to work the following Monday, October 13, 2014. He did not file a workers' compensation claim.
As a result of KUSD's investigation, Leiferman was served with a "Notice of Intended Dismissal" and a "Statement of Charges and Accusation" on December 19, 2014. The KUSD Superintendent instituted termination proceedings for dishonesty and unfitness for service under Education Code section 44932 et seq. On January 21, 2015, the KUSD Board of Trustees voted to terminate Leiferman's employment. Leiferman was sent a "Notice of Termination."
B. Leiferman's Complaint and KUSD's Anti-SLAPP Motion to Strike
Leiferman filed a complaint with three causes of action: (1) disability discrimination in violation of the Fair Employment and Housing Act (FEHA); (2) failure to provide reasonable accommodation under FEHA; and (3) failure to engage in interactive process under FEHA.
Leiferman alleged that he was discriminated against and terminated due to his disability. He claimed he could have performed the essential functions of his job if KUSD had provided reasonable accommodation. He sought damages for emotional distress and lost income.
KUSD filed a special motion to strike pursuant to section 425.16. KUSD argued that the three causes of action arose from protected activity during and in connection with the board of Trustees' decision to terminate Leiferman's employment.
C. Trial Court's Ruling on KUSD's Motion to Strike
On December 1, 2015, the trial court issued a "Ruling on Defendant[']s Motion to Strike [E]ach Cause of Action (per Anti-SLAPP CCP 425.16)." The court found that KUSD's statements and conduct during the investigation and termination proceedings were protected as official proceedings authorized under Education Code section 44934, subdivision (b). The school board meeting where the decision was made to terminate Leiferman was a legislative or official proceeding under section 425.16.
The court next analyzed whether Leiferman's causes of action arose out of those protected activities. Leiferman's first cause of action for discrimination alleged he was fired due to his disability. This discrimination claim arose from the termination proceedings, and was a "necessary result" of those proceedings. "Indeed, it is clear that the gravamen of Plaintiff's discrimination cause of action is based entirely on the Board's alleged decision to terminate Plaintiff because he has a disability."
The court then analyzed whether Leiferman had a probability of prevailing on the merits of his discrimination claim. To determine if Leiferman could prevail, the court reviewed whether he could present a prima facie case of discrimination and if he could, whether KUSD could establish a legitimate nondiscriminatory reason for his termination, and whether Leiferman could show this reason was pretextual.
The trial court found Leiferman had shown he suffered from a disability due to his ruptured eardrum. Leiferman requested accommodations to allow him to perform the functions of his job. The court determined Leiferman had presented a prima facie case of discrimination, and that KUSD "chose to conclude Plaintiff's injuries were fake and terminate Plaintiff, such that Plaintiff's ultimate termination might have been—at least in part—'because of' his disability."
The court next decided that KUSD had "clearly shown evidence of a legitimate, nondiscriminatory reason for Plaintiff's termination." Leiferman admitted he planted fake blood in his desk to catch the district going through his belongs and to "get even." The court, however, found a "reasonable jury could infer, from this set of facts, that Defendant chose to terminate Plaintiff not because, or not only because, Plaintiff tried to trick Defendant to catch Defendant going through his desk, but because Defendant did not want to deal with Plaintiff's need for accommodations, i.e., because of [Plaintiff's] disability." Thus, Leiferman had made the minimal showing of the probability of prevailing on his first cause of action.
Leiferman's second cause of action for failure to provide reasonable accommodation and third cause of action for failure to engage in an interactive process arose from facts unrelated to his termination claim. Thus, the court held that the second and third causes of action did not arise from protected activities. Leiferman's initial injury occurred in 2010, and he requested accommodation in 2012 and again in 2014. KUSD's alleged failure to accommodate or engage in an interactive process occurred prior to the investigation into the October 10, 2014 incident, and the termination proceedings which followed. The court found "it is difficult to imagine a failure to accommodate or failure to engage in the interactive process claim that is based on an act in furtherance of the defendant's right of petition or free speech." Moreover, Leiferman could have still brought these claims even if the investigation and termination proceedings had not occurred.
Therefore, the court denied KUSD's anti-SLAPP motion in its entirety.
D. The Office of Administrative Hearings Decision
After the opening brief was filed before this court, the OAH issued a 15-page decision in In the Matter of Disciplinary Proceeding to Dismiss: Reed Leiferman, supra. KUSD sought Leiferman's dismissal based upon dishonesty and unfitness for service. The issues before the administrative law judge (ALJ) were: (1) Did Leiferman commit acts of dishonesty; (2) Is Leiferman unfit for service as a teacher; and (3) Should Leiferman be dismissed from his teaching position.
On July 26, 2016, KUSD filed a request for judicial notice attaching the OAH decision as well as transcripts and evidence from the hearing. We granted the motion without determining its relevance on September 29, 2016.
The ALJ found that Leiferman's testimony about the blood on his ear and the towel "lacked credibility" compared to the testimony of the principal, teacher and school secretary who each independently concluded that the substance was not blood. Further, Leiferman offered a lab report that the towel had his DNA on it, but the report did not analyze whether the substance on the towel was blood, thus it did not establish his injury was genuine. Leiferman admitted he wanted to mislead KUSD and create an opportunity for litigation. Therefore, the ALJ found Leiferman was untruthful about his injury.
The ALJ then analyzed whether Leiferman's dishonesty made him unfit for service as a teacher under the eight-factor test from Morrison v. State Board of Education (1969) 1 Cal.3d 214, 229-230. The ALJ found that Leiferman falsely claimed he was injured and then repeatedly insisted his injury was real during the investigation, his deposition, and in his testimony at the hearing. The judge found that this dishonesty had an adverse effect on the school by resulting in a loss of time, and creating expense for KUSD as well as disrupting the academic community. Leiferman was willing to engage in a far-reaching dishonest plot, "without a hint of remorse," which made the possibility of future dishonest conduct reasonably probable. As a result, Leiferman's conduct and character traits made him unfit for service.
The ALJ concluded that under Education Code section 44932, KUSD could properly dismiss Leiferman as unfit for service for dishonesty. Leiferman called into question his supervisors' and colleagues' integrity, destroying trust, and compromising the work environment. Therefore, Leiferman was properly dismissed from his position as a KUSD teacher.
III.
DISCUSSION
A. Standard of Review
We recently set forth the standard of review for granting a special motion to strike: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (§ 425.16, subd. (b)(1).)
"Our Supreme Court has outlined the two steps involved in applying the anti-SLAPP statute: ' "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one 'arising from' protected activity. (§ 425.16, subd. (b)(1).) 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." [Citation.]' (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 . . . (Oasis West).) Only a cause of action that arises from protected speech and lacks even minimal merit is subject to being stricken under the anti-SLAPP statute. (Id. at p. 820.)
"We review de novo an order granting or denying a motion to strike under section 425.16. (Oasis West, supra, 51 Cal.4th at p. 820.) 'In considering the pleadings and supporting and opposing declarations, we do not make credibility determinations or compare the weight of the evidence. Instead, we accept the opposing party's evidence as true and evaluate the moving party's evidence only to determine if it has defeated the opposing party's evidence as a matter of law. (Albanese v. Menounos (2013) 218 Cal.App.4th 923, 928-929 . . . .)" (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 80 . . . .)
B. The First Prong—Protected Activity or Speech
KUSD argues on appeal that Leiferman's claims arise from protected activity, namely the government investigation and formal administrative proceedings to terminate him as a teacher.
A claim is subject to the anti-SLAPP statute under section 425.16 if it is an " '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,' " including "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or 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 a legislative, executive, or judicial body, or any other official proceeding authorized by law." (§ 425.16, subd. (e)(1), (2).)
Internal investigations by governmental agencies into misconduct or criminal activity by employees are "official proceeding[s]" under section 425.16, subdivision (e)(2). (Hansen v. California Department of Corrections and Rehabilitation (2008) 171 Cal.App.4th 1537 (Hansen).) Applying these baseline authorities, we examine each cause of action to determine if any or all of them arose out of this form of protected activity.
1. First Cause of Action: Discrimination Under FEHA
The trial court concluded Leiferman's discrimination claim arose from the termination proceedings and was a "necessary result" of those proceedings. We agree. KUSD conducted an official investigation into Leiferman's conduct and petitioned to terminate him as unfit for service based on his dishonesty. The first cause of action was made during and "in connection with" petitioning activity before a legislative body under section 425.16, subdivision (e). Statements and writings made in connection with an internal personnel investigation of an employee fall under section 425.16, subdivision (e). (Hansen, supra, 171 Cal.App.4th at p. 1544.)
As soon as KUSD discovered the fake blood in Leiferman's desk, it began an investigation that ultimately led to the administrative hearing and Leiferman's discharge. Communications and petitioning activity to school districts seeking disciplinary action against an employee are part of an official proceeding authorized by law. (Lee v. Fick (2005) 135 Cal.App.4th 89, 96.) Teacher termination proceedings are mandated by the Education Code, which sets forth the procedures for the official process. (Ed. Code, §§ 44932-44945.) Thus, all statements and activity "in connection with" Leiferman's termination proceeding are protected activity under section 425.16, subdivision (e). (See, e.g., Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 (Kibler).)
In Kibler, our Supreme Court applied the anti-SLAPP statute to a lawsuit for damages brought by a physician arising out of the hospital peer review committee's disciplinary recommendation. The high court held that a hospital's peer review process is an official proceeding authorized by law under the anti-SLAPP statute, and a lawsuit arising out of peer review proceeding is properly subject to an anti-SLAPP suit. (Kibler, supra, 39 Cal.4th at p. 198.)
In Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 (Park), our Supreme Court clarified that in Kibler, the only issue before the court was whether a peer review proceeding was an official proceeding. "We did not consider whether the hospital's peer review decision and statements leading up to that decision were inseparable for purposes of the arising from aspect of an anti-SLAPP motion, because we did not address the arising from issue. [Citation.]" (Id. at p. 1069.)
Our Supreme Court recently clarified the question of what nexus a defendant must show between a challenged claim and the defendant's activity for a claim to be struck under the anti-SLAPP statute. (Park, supra, 2 Cal.5th 1057.) The court held "a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, 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." (Id. at p. 1060.)
The Park decision was issued after oral argument in this case. We vacated submission and provided the parties an opportunity to submit supplemental briefing on the decision.
Park was an assistant professor who was denied tenure. (Park, supra, 2 Cal.5th at p. 1061.) He filed a claim under FEHA for national origin discrimination. (Ibid.) The Supreme Court concluded: "The elements of Park's claim . . . depend not on the grievance proceeding, any statements, or any specific evaluations of him in the tenure process, but only on the denial of tenure itself and whether the motive for that action was impermissible. The tenure decision may have been communicated orally or in writing, but that communication does not convert Park's suit to one arising from such speech." (Id. at p. 1064.)
Leiferman argues he is suing KUSD because he was terminated for his disability. He contends the official proceedings constitute evidence of KUSD's wrongdoing but they are not the basis for liability. But the trial court found that Leiferman's discrimination claim arose from the official termination proceedings and was the "necessary result" of those proceedings. The trial court stated the "gravamen" of Leiferman's claim was the board's decision to terminate him.
KUSD argues that under the reasoning of Park, the speech or petitioning activity provided the basis for Leiferman's claim and was more than mere evidence of liability. Leiferman's claim directly relies upon the district's petitioning activity because KUSD could not terminate Leiferman without filing a formal legal action petition for termination. (See Ed. Code, § 44934, subds. (b), (c).)
We conclude that Leiferman's first cause of action arises from protected activity because KUSD's petitioning activity is the wrong complained of in the complaint.
Leiferman also relies on Young v. Tri-County Healthcare Dist. (2012) 210 Cal.App.4th 35 (Young) to argue the anti-SLAPP statute does not apply to his discrimination claim. Young was a medical doctor who brought a writ of administrative mandate to challenge a hospital board's revocation of his staff privileges. (Id. at p. 39.) The board filed an anti-SLAPP motion to strike Young's suspension claim, which it argued arose from speech and activities connected to the hospital peer review proceedings. (Id. at p. 40.) Young's cause of action challenged the peer review process, claiming the committee was unqualified and did not properly review his records. (Id. at p. 44.) The reviewing court denied the board's anti-SLAPP motion, concluding that to prevent Young from seeking mandamus would improperly burden his petitioning rights: " 'If mandamus petitions challenging decisions reached in this manner were routinely subject to a special motion to strike . . . it would chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power, which is at the heart of those remedial statutes. It would also ironically impose an undue burden upon the very right of petition for those seeking mandamus review in a manner squarely contrary to the underlying legislative intent behind [the anti-SLAPP statute].' [Citations.]" (Id. at p. 56.)
However, where damages are sought rather than mandamus, the Young court followed the holding in Kibler, noting that Young's "request for judicial relief from an administrative decision should be distinguished from requests for damages that are fundamentally based on alleged injury arising from such peer review activity." (Young, supra, 210 Cal.App.4th at p. 57; see also id. at p. 58 ["We think this claim of entitlement to judicial review of allegedly prejudicial administrative action . . . is separate and different from an action for damages that arose out of the content of the allegedly wrongful peer review statements, such as the court[] in Kibler, supra, 39 Cal.4th 192].)
Thus, Young clearly is distinguishable from this case. Here, Leiferman has not sought a writ of mandate to review KUSD's termination process, rather as in Kibler he is seeking damages for the result of that process—his termination. He sought compensatory damages for emotional distress and lost income, as well as punitive damages. Accordingly, because Leiferman's termination hearing was an official proceeding authorized by law, and he seeks damages resulting from that proceeding, his claim properly is subject to an anti-SLAPP motion.
In his supplemental brief, Leiferman argues that because the Supreme Court does not make a distinction between petitions for mandamus and actions for damages in Park that KUSD cannot use this as a basis to distinguish Young. However, an appellate decision is only authority " 'for the points actually involved and actually decided.' [Citation]." (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) Park does not address the issue raised in Young or briefed by the parties here.
2. Second and Third Causes of Action for Accommodation and Interactive Process
In its opening brief on appeal, KUSD argued that the second cause of action for failure to provide accommodation and the third cause of action for failure to engage in an interactive process are "mixed" causes of action alleging both protected and non-protected activity. KUSD asserts both claims constitute protected activity based on some, but not all, of the alleged conduct. After briefing was completed, our Supreme Court issued its decision in Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral), holding where both protected and unprotected activity are alleged in a cause of action, the unprotected activity is disregarded and the plaintiff must establish a probability of prevailing on the protected activity. We requested supplemental briefing from both parties about the impact of Baral on the second and third causes of action.
The Baral court outlined the appropriate procedure for mixed causes of action: "At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity 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, supra, 1 Cal.5th at p. 396.)
Here, the complaint alleges KUSD failed to provide accommodation for Leiferman: (1) from 2012 to 2014, and (2) terminated him rather than providing accommodation after October 2014. The complaint alleges KUSD failed to engage in any interactive process until August 2014 and terminated him without any interactive process after October 2014.
In its supplemental brief, KUSD concedes that some of the conduct at issue does not arise from protected activity and is not subject to an anti-SLAPP motion to strike. KUSD argues that Leiferman's claims of failure to accommodate and engage in an interactive process are premised on two different time-periods: (1) 2012 to August 2014, and (2) after October 10, 2014. KUSD concedes that the acts occurring prior to October 2014 do not arise out of protected activity and occurred prior to the investigation and termination proceedings. These allegations in the second and third causes of action do not come within prong one of the anti-SLAPP analysis and are not properly subject to KUSD's motion to strike.
But, KUSD argues that the acts that occurred after the October 10, 2014 incident arose from the termination proceedings because Leiferman alleged that KUSD terminated his employment rather than engaging in an interactive process and accommodating him.
At bottom, the holding in Baral does not control the resolution of these two causes of action because they are not "mixed" claims. The trial court found that the failure to accommodate or engage in an interactive process arose from facts unrelated to the termination proceedings, and that neither claim was "based on an act in furtherance of [KUSD's] right of petition or free speech." We agree with Leiferman that his claims for failure to accommodate or engage in an interactive process are not premised on any actions or statements in the official proceedings. KUSD's alleged wrongful conduct in failing to provide the requested process was not done in furtherance of any claimed right of petition or free speech. (See Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399; see also Park, supra, 2 Cal.5th 1057.)
A failure to provide accommodation is a violation of FEHA separate from the termination. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 ["Under the express provisions of the FEHA, the employer's failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself."].)
The fact that Leiferman continued to accuse KUSD of failure to accommodate and engage in an interactive process at the termination proceedings does not elevate those alleged acts to protected activity status. "If the mention of protected activity is 'only incidental to a cause of action based essentially on nonprotected activity,' then the anti-SLAPP statute does not apply. [Citation.]" (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 272; Baral, supra, 1 Cal.5th at p. 394 ["Assertions that are 'merely incidental' or 'collateral' are not subject to section 425.16."].) Here the petitioning activity involved in the official termination proceedings does not form the basis for the failure to accommodate or failure to provide an interactive process claims. (Park, supra, 2 Cal.5th at pp. 1069-1070.)
Leiferman's termination by the KUSD Board of Trustees and related proceedings were based upon his acts of dishonesty connected to the October 10, 2014 incident. His termination for being unfit for service as a teacher was based upon his conduct and unrelated to his alleged disability. Therefore, his second and third causes of action do not arise from protected activity or speech. The trial court properly denied KUSD's motion to strike these claims.
C. The Second Prong—Probability of Prevailing on the Merits
Having concluded that the second and third causes of action do not arise out of protected speech or activity, we need only analyze the probability of prevailing on the merits of the first cause of action for discrimination.
KUSD makes extensive arguments as to why Leiferman's second and third causes of action fail on the merits. We need not, and do not, address these claims since we affirm the denial of the anti-SLAPP motion on these two causes of action because KUSD made an insufficient showing that they were grounded upon protected activity.
To satisfy the second prong of the anti-SLAPP analysis, the plaintiff must demonstrate the complaint is both "legally sufficient" and supported by "a sufficient prima facie showing of facts" to sustain a favorable judgment when plaintiff's evidence is credited. (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695, citing Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477-1478.) "Thus, the only question for purposes of our review is whether, accepting [plaintiff's] evidence as true and only looking to defendants' evidence to assess whether it defeats [plaintiff's] as a matter of law, [plaintiff] established his causes of action against . . . defendant[] ha[s] minimal merit. [Citation.]" (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 275.)
KUSD argues that the OAH decision acts as collateral estoppel to Leiferman's discrimination claim. It established Leiferman faked his October 2014 ear injury and KUSD had no improper pretextual reason for terminating him. Because these issues have been decided by the OAH, KUSD asserts that Leiferman cannot relitigate them, and thus cannot demonstrate he can prevail on the merits of his first cause of action.
"Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.]" (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. omitted (Lucido).) "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]" (Ibid.)
"It has long been recognized that collateral estoppel not only prevents relitigation of court findings, but also may be applied to the decision of an administrative agency when that agency is acting in a judicial or quasi-judicial capacity." (Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 878 (Basurto), citing People v. Sims (1982) 32 Cal.3d 468, 479.)
Leiferman does not contest the application of collateral estoppel to the first cause of action. In his supplemental brief, he simply argues the ALJ's decision has no preclusive effect as to the second and third causes of action—not the wrongful termination cause of action.
A similar situation arose in Basurto. Salvador Basurto claimed damages for alleged age and race discrimination and wrongful termination. The trial court determined that Basurto's civil claims were barred, under principles of collateral estoppel, by a prior adverse administrative decision of the district's governing board. (Basurto, supra, 211 Cal.App.4th at p. 870.) "For collateral estoppel to apply, the District was required to show that the issues actually litigated before and decided by the District Board are identical to those underlying Basurto's civil claims. [Citation.]" (Id. at p. 887.) Basurto made no argument that these elements were not established, and the record provided ample support that they were. (Ibid.) The same holds true here.
The Basurto court further held: " 'The "identical issue" requirement addresses whether "identical factual allegations" are at stake in the two proceedings . . . .' " (Lucido, supra, 51 Cal.3d at p. 342 . . . , italics added.) At the heart of both Basurto's administrative proceeding and his civil lawsuit is the issue of the wrongfulness of his discharge." (Basurto, supra, 211 Cal.App.4th at p. 887.) Again, the same is true for Leiferman.
In Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477 (Castillo), the trial court granted summary judgment against the plaintiff in his wrongful termination action on the ground that his discrimination claims were barred by a prior administrative ruling that he had been discharged for nondiscriminatory reasons relating to his performance. (Id. at pp. 479-480.) Although Castillo presented evidence of alleged disparate treatment by his supervisor at the administrative hearing, he did not attribute that disparity to age, race or national origin as he did before the trial court. (Id. at p. 482.) Nevertheless, the court held that collateral estoppel barred his FEHA discrimination claims. "Castillo has not shown that he was prevented from introducing admissible evidence relevant to [the issue of discrimination]." (Ibid.) The administrative hearing officer determined that Castillo's discharge was for "appropriate" reasons; "if the hearing examiner were to have found that the reasons for the discharge were merely a pretext for discrimination, she would not have found the discharge was appropriate." (Ibid.) The issue of whether Castillo's discharge was justified on nondiscriminatory grounds was actually litigated and necessarily decided. Allowing Castillo "to relitigate the question of wrongful discharge would diminish the value of the administrative process that concluded that his discharge was proper, especially where, as here, an employee must challenge the action administratively before filing suit. [Citation.]" (Id. at p. 483.)
Like Castillo, the issues raised by Leiferman in his discrimination claim before the trial court are the same issues raised and actually litigated in the administrative hearing. After the hearing, the ALJ found that Leiferman was unfit for service as a teacher due to his dishonesty. The ALJ found Leiferman "did not establish that the district had any improper pretext for his termination."
The OAH decision was final on the merits. Under Education Code section 44945, the ALJ decision is subject to judicial review by filing a writ with the superior court. The time period for filing a writ is within 30 days of the last day for reconsideration of the order. (Gov. Code, § 11523.) The reconsideration period expired 30 days after the administrative decision was mailed. (Gov. Code, § 11521, subd. (a); Hansen v. Board of Registered Nursing (2012) 208 Cal.App.4th 664, 669.) Thus, Leiferman had 60 days to file a writ and he failed to do so. The OAH decision was mailed on April 21, 2015, so any writ had to be filed by June 20, 2015. No writ was filed.
We note too that the OAH process was sufficiently judicial in character. "Indicia of [administrative] proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given under oath or affirmation; a party's ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision. [Citation.]" (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944.) Here, the parties had the opportunity to take depositions and conduct discovery. The ALJ held a four-day hearing where the parties submitted exhibits, called witnesses who testified under oath, and were subject to cross-examination. The parties submitted written closing briefs. The ALJ issued a 15-page written decision.
Finally, we conclude it is appropriate to apply collateral estoppel to the merits analysis of an anti-SLAPP motion. This case is strikingly similar to Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373 (Miller), where the court held that collateral estoppel applied in an anti-SLAPP lawsuit. Miller was discharged for misconduct after an investigation and a hearing. Miller appealed his decision to a reviewing board, which upheld the termination. (Id. at pp. 1376-1377.) Miller did not challenge the board's decision by filing a petition for writ of mandate. Instead, he filed a civil complaint against the city alleging various causes of action. (Id. at p. 1378.) The city filed a motion to strike under the anti-SLAPP statute. The trial court granted the anti-SLAPP motion and Miller appealed. (Id. at p. 1379.) The Miller court held under "the second prong [of the SLAPP statute], because Miller is collaterally estopped from arguing that his termination was wrongful in light of the finality of the administrative proceedings concluding he was properly terminated . . . Miller cannot meet his burden of establishing a probability of prevailing on the merits of these two claims. [Citation.]" (Id. at p. 1383.)
Here, Leiferman is collaterally estopped from raising his discrimination claim in light of the final OAH decision. The issues surrounding Leiferman's termination are identical to those raised in his first cause of action here. Those issues were actually and necessarily decided in the administrative hearing and that decision is now final. Thus, collateral estoppel bars the first cause of action here rendering it impossible for Leiferman to prevail on the merits of that claim. In conclusion, we note that " '[g]iving conclusive effect' to . . . an agency decision '[promotes] judicial economy by minimizing repetitive litigation.' [Citation.]" (Basurto, supra, 211 Cal.App.4th at p. 893.)
We reverse the trial court's denial of KUSD's motion to strike as to the first cause of action.
IV.
DISPOSITION
We affirm the trial court's denial of KUSD's motion to strike the second and third counts, but reverse as to the first count. In the interests of justice each party is to bear their own costs on appeal. Any issues relating to attorney fees should be addressed to the trial court in the first instance upon remand.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
RIVERA, J.