Gallant v. City of Alameda CA1/3

Filed 6/20/13 Gallant v. City of Alameda CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

ANN MARIE GALLANT,
Plaintiff and Respondent,
A133777
v.
CITY OF ALAMEDA, (Alameda County
Super. Ct. No. RG11590505)
Defendant and Appellant.

Defendant City of Alameda (the city) appeals from an order denying its special
motion to strike the complaint of plaintiff Ann Marie Gallant as a strategic lawsuit
against public participation pursuant to Code of Civil Procedure,1 section 425.16
(hereafter referred to as SLAPP statute or anti-SLAPP statute). The trial court
determined that the complaint was not based on petitioning or free speech activity
protected by section 425.16. We disagree, and accordingly, we reverse and remand for
further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Ann Marie Gallant was formerly employed as interim city manager,
pursuant to a written employment contract, for a minimum period of 24 months,
commencing April 1, 2009 and ending March 31, 2011. At a December 28, 2010, public
meeting, the city council voted to “terminate” Gallant’s contract.

1
All further unspecified statutory references are to the Code of Civil Procedure.

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 Under the complaint’s causes of actions, designated “Labor Code § 1102.5(b)2”;
Labor Code § 1102.5(c),3” “declaratory relief,” and “breach of contract,” Gallant alleged
her employment had been “terminated” because (1) she refused to participate in illegal
activity; and (2) she disclosed information pertaining to illegal activity to government
agencies regarding a city council member. She also alleged the reported city council
member had influenced two other council members to vote to terminate her contract.
Gallant also alleged the city council’s vote to terminate her contract violated section 2-2
of the city charter4 and paragraph two of the employment contract.5 Because Gallant’s

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Labor Code section 1102.5, section (b), reads: “An employer may not retaliate
against an employee for disclosing information to a government or law enforcement
agency, where the employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation or noncompliance with a
state or federal rule or regulation.”
3
Labor Code section 1102.5, section (c), reads: “An employer may not retaliate
against an employee for refusing to participate in an activity that would result in a
violation of state or federal statute, or a violation of noncompliance with a state or federal
rule or regulation.”
4
Section 2-2 of the city charter reads: “(A) The following offices are hereby
established and the incumbents thereof shall be appointed or removed by a vote of a
majority of the full Council: City Manager, City Attorney, City Clerk. [¶] (B) During a
period of ninety days immediately following the date of installation of any person newly
elected to the Council at a regular or special municipal election or of any person newly
appointed to the Council, the Council shall take no action, whether immediate or
prospective, to remove, suspend, request the resignation of, or reduce the salary of, the
incumbents in the aforementioned appointive offices.”
5
Paragraph two of the contract reads: “Interim City Manager shall be hired as a
limited term employee for a minimum period of twenty four (24) months, commencing
April 1, 2009 and ending March 31, 2011, unless extended by mutual agreement. Such
extensions shall be in 90 day increments, at the commencement of which the City council
shall initiate its selection and recruitment procedure for the appointment of a permanent
City Manager. [¶] Should the City council elect to delay its executive search for a City
Manager, or elect not to select a candidate at the term of this agreement, this agreement
shall automatically renew in 90 days increments as provided herein until such time as the
City council has selected a permanent City Manager or until such time as the City
provides the Interim City Manager with timely notice of non-renewal. The City council
shall provide the Interim City Manager with written notice of non-renewal at least 90
days prior to the initial Termination Date or any succeeding Termination Date.”

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contract had not been properly terminated, she alleged the city was obligated to continue
to pay her but it had stopped paying her on or about April 1, 2011. Gallant sought a
declaration to resolve the parties’ “actual controversy” relating to the validity of the city
council’s vote to terminate her contract on December 28, 2010, and damages for loss of
pay and benefits, continuing to accrue until 90 days after the city complied with the
termination terms of the employment contract.
After filing its answer, the city filed a special motion to strike the complaint,
which was opposed by Gallant. After a hearing, the trial court issued a written order
denying the city’s special motion to strike the complaint. The court explained:
“Plaintiff’s claims arise from the City of Alameda’s termination of her employment
contract rather than any petitioning or free speech activity protected by the anti-SLAPP
statute. Because the Court finds that the complaint does not arise from protected activity
within the meaning of [section] 425.16, the Court need not reach the issue of whether
plaintiff has made a sufficient showing on the merits of her claims.” The city now timely
appeals.
DISCUSSION
Section 425.16, subdivision (b), states, in pertinent part: “(1) 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.” “[T]he word ‘person’ as used in section 425.16,
subdivision (b) must be read to include a governmental entity.” (Bradbury v. Superior
Court (1996) 49 Cal.App.4th 1108, 1114.)
We review the trial court’s order denying the city’s special motion to strike under
section 425.16 de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) “[A] special
motion to strike involves a two-part inquiry. First, the defendant must make a prima
facie showing that a cause of action arises from an act in furtherance of his or her
constitutional rights of petition or free speech in connection with a public issue.

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[Citations.] If such a showing has been made, the burden shifts to the plaintiff to
demonstrate a probability of prevailing on the claim. [Citation.] If the plaintiff fails to
carry that burden, the cause of action is ‘subject to be stricken under the statute.’ ”
(Birkner v. Lam (2007) 156 Cal.App.4th 275, 280-281.)
The SLAPP statute’s protected activity is broadly defined to include “(1) any
written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (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, (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest.” (§ 425.16,
subd. (e).) “[A] defendant moving to strike a cause of action arising from a statement
made before, or in connection with an issue under consideration by, a legally authorized
official proceeding need not separately demonstrate that the statement concerned an issue
of public significance.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1123, fn. omitted.) Instead, “the statutory remedy afforded by section
425.16 extends to statements and writings of governmental entities and public officials on
matters of public interest and concern that would fall within the scope of the statute if
such statements were made by a private individual or entity.” (Vargas v. City of Salinas
(2009) 46 Cal.4th 1, 17.)
In analyzing the first prong of the section 425.16 analysis, “courts must be careful
to distinguish allegations of conduct on which liability is to be based from allegations of
motives for such conduct. ‘[C]auses of action do not arise from motives; they arise from
acts.’ [Citation.] ‘The statute applies to claims “based on” or “arising from” statements
or writings made in connection with protected speech or petitioning activities, regardless
of any motive the defendant may have had in undertaking its activities, or the motive the
plaintiff may be ascribing to the defendant’s activities.’ ” (People ex rel. Fire Ins.

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Exchange v. Anapol (2012) 211 Cal.App.4th 809, 823.) Also, “[t]he anti-SLAPP
statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the
defendant’s activity that gives rise to his or her asserted liability – and whether that
activity constituted protected speech or petitioning.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 92 (Navellier).) Thus, regardless of the labeled causes of action, Gallant
“cannot avoid operation of the anti-SLAPP statute by attempting through artifices of
pleading, to characterize an action as a garden variety tort or contract claim when in fact
the claim is predicated on protected speech or petitioning activity.” (Hylton v. Frank E.
Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272.)
We agree with the city that the overarching premise of all of Gallant’s causes of
action is the termination of her employment contract, which is protected conduct under
the anti-SLAPP statute as either a “written or oral statement or writing made before a
legislative . . . proceeding, or any other official proceeding authorized by law,” or a
“written or oral statement or writing made in connection with an issue under
consideration or review by a legislative . . . body, or any other official proceeding
authorized by law.” (§ 425.16, subds. (e)(1) & (2).) As Gallant concedes in her
responsive brief, her retaliation and breach of contract claims, and request for declaratory
relief, “would have no basis in the absence of” the city’s alleged actions taken in
connection with the termination of her employment itself. (Tuszynska v. Cunningham
(2011) 199 Cal.App.4th 257, 270 (Tuszynska); cf. Martin v. Inland Empire Utilities
Agency (2011) 198 Cal.App.4th 611, 624 (Martin) [court concluded gravamen of
plaintiff’s complaint was one of racial and retaliatory discrimination, not an attack on
agency’s chief executive officer or evaluations of plaintiff's performance as an
employee]; Department of Fair Employment & Housing v. 1105 Alta Loma Road
Apartments, LLC (2007) 154 Cal.App.4th 1273, 1284 [court concluded gravamen of
complaint was discrimination, not exercise of defendant’s protected speech].) Thus,
because the city’s decision to terminate Gallant’s employment constitutes “the gravamen,
principal thrust, and core injury-producing conduct underlying [Gallant’s] . . . claims”

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(Tuszynska, supra, at p. 270), the lawsuit “falls squarely within the ambit of the anti-
SLAPP statute’s ‘arising from’ prong” (Navellier, supra, 29 Cal.4th at p. 90).6
Gallant’s reliance on McConnell v. Innovative Artists Talent & Literary Agency,
Inc. (2009) 175 Cal.App.4th 169, and Marlin v. Aimco Venezia, LLC (2007) 154
Cal.App.4th 154, is misplaced as neither case concerns a municipality’s protected activity
as defined in section 425.16, subdivisions (e)(1) and (e)(2).7 Additionally, the McConnell
court’s statement that “no one would suggest that a statement or writing firing an
employee is protected First Amendment activity” (175 Cal.App.4th at p. 180),
misconstrues the issue before us. “[T]he salient question in this case is not whether
[defendant’s] acts are protected as a matter of law under the First Amendment of the
United States Constitution in some other context, but whether they fall within the
statutory definition of conduct that the Legislature deemed appropriate for anti-SLAPP
motions.” (Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992,
1001 (Schaffer).) “The moving defendant’s burden is to demonstrate that the act or acts
of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of
petition or free speech under the United States or California Constitution in connection
with a public issue,’ as defined in the statute.” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises), italics added.)

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To avoid the application of the anti-SLAPP statute, Gallant asks us to consider the
events before December 28, 2010, which explain that the motive for her termination was
“retaliatory” unprotected conduct. But, Gallant confuses “a defendant’s alleged injury-
producing conduct with the unlawful motive the plaintiff is ascribing to that conduct.”
(Tuszynska, supra, 199 Cal.App.4th at p. 271.) “ ‘[C]onduct alleged to constitute breach
of contract may also come within constitutionally protected speech or petitioning.’ ” (Id.
at p. 269.) Gallant is “positing a ‘false dichotomy between actions that target “the . . .
performance of contractual obligations” and those that target “the exercise of the right of
free speech.” ’ ” (Ibid., quoting Navellier, supra, 29 Cal.4th at p. 92.)
7
In her opening brief, Gallant also refers us to Kapler v. City of Alameda, which
was then pending review in Division One of this court. However, since the filing of the
parties’ briefs, our colleagues in Division One have decided Kapler in a nonpublished
opinion. (Sept. 6, 2012, A133001) [nonpub. opin.].) Consequently, we do not rely on or
further discuss this case. (Cal. Rules of Court, rules 8.1105(e)(1) & 8.1115(a).)

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 We also see no merit to Gallant’s argument that the anti-SLAPP statue has not
been applied to wrongful termination claims. “ ‘There is simply no authority for creating
a categorical exception [from the anti-SLAPP law] for any particular type of claim
. . . .’ ” (People ex rel. Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th at p. 823.)
“ ‘ “Considering the purpose of the [anti-SLAPP] provision, expressly stated, the nature
or form of the action is not what is critical but rather that it is against a person who has
exercised certain rights” [citation]. “The Legislature recognized that ‘all kinds of claims
could achieve the objective of a SLAPP suit—to interfere with and burden the
defendant’s exercise of his or her rights.’ ” ’ [Citation.] ‘Nothing in the statue itself
categorically excludes any particular type of action from its operation, and no court has
the “ ‘power to rewrite the statute so as to make it conform to a presumed intention which
is not expressed.’ ” ’ [Citation.] Given these pronouncements, and the Legislature’s
express reminder that anti-SLAPP motions should be ‘construed broadly’ (§ 425.16,
subd. (a)), we do not find room to except claims involving [wrongful termination] from
the reach of the statute.” (Beach v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82,
91.)
In sum, we conclude the city met its burden of showing that the complaint’s
causes of action were based on “constitutional free speech and petitioning activity as
defined in the anti-SLAPP statute[],” and “arose from activity protected by the anti-
SLAPP statute.” (Navellier, supra, 29 Cal.4th at p. 95; italics added.) Whether the city’s
conduct “was wrongful” is a matter Gallant must “support in the context of the discharge
of [her] burden to provide a prima facie showing of the merits of [her causes of action].”
(Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on other
grounds in Equilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5).
The parties ask us to address whether Gallant met the second prong of the section
426.15 analysis, namely, whether she met her burden of establishing a reasonable
probability of prevailing on her claims by producing “evidence that would be admissible
at trial.” (Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th
515, 527.) However, the trial court did not rule on the city’s numerous written objections

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challenging Gallant’s proffered evidence, the appellate record does not include Gallant’s
written responses, if any, to the city’s evidentiary objections, and she has not specifically
addressed the objections in her responsive brief. “Rulings on the evidentiary objections
are necessary before the trial court or this court can determine whether [Gallant] has
presented admissible evidence that demonstrates a probability of prevailing on the merits
of her claims. . . . ‘ “Trial courts have a duty to rule on evidentiary objections.”
[Citation.] When that duty is not performed, appellate courts are left with the nebulous
task of determining whether the ruling that was purportedly made was within the
authority and discretion of the trial court and was correct.’ ” (Martin, supra, 198
Cal.App.4th at p. 630.) Given the procedural posture of this case, we conclude it is more
appropriate to remand the matter to the trial court so that it may rule on the outstanding
evidentiary and substantive issues in the first instance. (Birkner v. Lam, supra, 156
Cal.App.4th at p. 286.)
DISPOSITION
The November 10, 2011, order denying defendant’s special motion to strike is
reversed. The matter is remanded to the trial court for further proceedings consistent
with this opinion. The parties shall bear their respective costs on appeal.

_________________________
Jenkins, J.

We concur:

_________________________
McGuiness, P. J.

_________________________
Siggins, J.

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