Lutzow v. City of Manteca CA3

Filed 6/6/23 Lutzow v. City of Manteca CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----

MIRANDA LUTZOW, C095467

Plaintiff and Respondent, (Super. Ct. No. STK-CV-
UOE-2021-0006054)
v.

CITY OF MANTECA,

Defendant and Appellant.

Plaintiff Miranda Lutzow (plaintiff), the former city manager for defendant City of
Manteca (defendant or the City), sued the City alleging gender-based harassment,
retaliation, and failure to prevent harassment and retaliation, resulting in her wrongful
constructive termination. Defendant filed a special motion to strike the complaint

1
pursuant to Code of Civil Procedure section 425.16 (hereafter, anti-SLAPP motion),1
which the trial court denied. The City appeals, arguing the trial court erred in denying the
motion because plaintiff’s claims arise from protected activity and because plaintiff failed
to show a probability of prevailing on the merits. We affirm the trial court’s denial of the
anti-SLAPP motion on the first four causes of action, but reverse on the wrongful
constructive discharge cause of action.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual history2
In July 2019, the City hired plaintiff as an administrative services director. In
September 2019, defendant placed the then city manager on administrative leave and
elevated plaintiff to interim city manager. In May 2020, plaintiff became the permanent
city manager. In that role, plaintiff hired two women, Lisa Blackmon and Toni
Lundgren, to work under her as assistant city manager and deputy city manager,
respectively. Plaintiff reported to and served at the pleasure of the city council, which
was comprised of four council members and the mayor.

1 Undesignated statutory references are to the Code of Civil Procedure.

SLAPP is an acronym for “ ‘strategic lawsuit against public participation.’ ”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 85.)
2 We admonish both parties for deficiencies in their briefs. Plaintiff’s brief contains
citations to declarations, exhibits, and pleadings without reference to the corresponding
pages in the appellate record, in violation of California Rules of Court, rule
8.204(a)(1)(C). Further, neither party challenged any of the trial court’s evidentiary
rulings on appeal, and thus we are bound by those rulings and may not consider excluded
evidence on appeal. (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th
574, 599, disapproved in part on another ground in Bonni v. St. Joseph Health System
(2021) 11 Cal.5th 995, 1010-1012 (Bonni).) Nonetheless, both parties cite to evidence
that was deemed inadmissible by the trial court. California Rules of Court, rule
8.204(a)(1)(C) limits factual citations in the parties’ briefs to admitted evidence that is
part of the record on appeal. Counsels’ failure to comply with this fundamental rule of
appellate practice created a confusing record that has frustrated appellate review.

2
 After plaintiff was appointed as city manager, Councilmember David
Breitenbucher began criticizing her job performance. He repeatedly stated that plaintiff
was “ ‘inexperienced’ ” and “ ‘unqualified,’ ” even though similarly experienced men had
previously served as city manager. He referred to plaintiff’s two female employees,
Blackmon and Lundgren, in the same terms. And rather than making requests of city
staff through plaintiff, Breitenbucher circumvented her and made direct requests to city
staff, which plaintiff perceived as undermining her authority and violating Manteca’s
Municipal Code. While plaintiff observed that Breitenbucher was cordial with male
employees, he spoke to plaintiff and other female employees in a dismissive and
patronizing manner. For example, after one meeting, Breitenbucher yelled loudly at
Lundgren on the phone, baselessly accused her of lying, and called her “ ‘kiddo’ ” in a
patronizing tone.
On June 5, 2020, after plaintiff had seen Breitenbucher repeatedly disclose
confidential information to third parties, plaintiff sent an e-mail to the city attorney and
the mayor stating that (1) Breitenbucher violated the Ralph M. Brown Act (Gov. Code,
§ 54950 et seq.; the Brown Act) by disclosing confidential information from a closed
session meeting of the city council; and (2) Breitenbucher admitted to her that he sent the
city’s former budget analyst’s resignation letter—which spoke poorly of plaintiff—to a
newspaper journalist, in violation of the city’s ethics policy. She asked how to stop
Breitenbucher from sharing confidential information, but she did not get a response to her
e-mail.
In June and August 2020, Breitenbucher “liked” Facebook posts criticizing
plaintiff’s performance as city manager, including one that stated, “Hopefully [plaintiff
will] be gone soon.”
On August 20, 2020, after Breitenbucher made several requests directly to city
staff, plaintiff e-mailed Breitenbucher, the mayor, and others instructing Breitenbucher to
make requests for information to the city manager’s officer in compliance with the

3
Manteca Municipal Code, rather than asking staff directly. Breitenbucher did not
respond.
On September 29, plaintiff met with Blackmon, the interim city attorney Brendan
Kearns, and the human resources director to convey her concerns about Breitenbucher’s
treatment of her. She explained that she had reviewed Breitenbucher’s e-mail history and
discovered that Breitenbucher was forwarding most, if not all, complaints about her to his
personal e-mail accounts. She also learned that Breitenbucher had sent a number of those
complaints from his personal e-mail accounts to the city attorney requesting that he
investigate. Plaintiff also expressed her concern about Breitenbucher’s possible lack of
compliance with the California Public Records Act (Gov. Code, § 7920.000 et seq.; the
Public Records Act). While discussing Breitenbucher’s actions, plaintiff was affected so
deeply that she began to cry. Kearns advised her that Breitenbucher would likely not run
for reelection in two years, so she should just “hang in there for another 2 years.”
On October 8, plaintiff informed a council member via text message that she likely
would resign as city manager because her reputation and mental health had deteriorated,
mentioning Breitenbucher’s actions. Plaintiff told the council member that Breitenbucher
screamed at Lundgren after a meeting, and that she had learned that Breitenbucher was
working with the grand jury after Blackmon received a subpoena.
On October 14, after Breitenbucher persisted in contacting city staff directly,
plaintiff e-mailed Breitenbucher again to remind him that this practice was not permitted.
She also reiterated her concerns about his inability to keep confidential information
private, asserting that he continued to violate the Brown Act.
On October 19, plaintiff had a meeting with Breitenbucher and the human
resources director, during which Breitenbucher complained about plaintiff’s performance.
As his sole example, he said he disliked that plaintiff had terminated the police chief.
Plaintiff told Breitenbucher she believed he was discriminating against her because she
was a woman, and that when he referred to her as “ ‘unqualified’ ” or “ ‘inexperienced,’ ”

4
those were “code words for ‘young woman.’ ” Breitenbucher laughed at plaintiff, but
then became very angry and loudly banged his fists on her desk within arm’s reach of
plaintiff. It was so loud that Blackmon heard the sound from the office next door.
Plaintiff felt shocked and frightened by his aggression. Later that day, Breitenbucher e-
mailed plaintiff a list of complaints about her performance. Plaintiff responded via e-
mail, disagreeing with many of the complaints, and stating she would address them later.
She further wrote that she could not think of any other reason for Breitenbucher
undermining her in the community other than the fact that she was a young woman, and
he preferred an older man as city manager. She also repeated her concerns that
Breitenbucher was leaking confidential information. Plaintiff included the human
resources director on the e-mail.
On November 5, the mayor requested a meeting with plaintiff, Breitenbucher, and
several others regarding plaintiff’s complaints that Breitenbucher leaked confidential
information in violation of the Brown Act. During the meeting, Breitenbucher appeared
angry and red-faced and immediately left at the conclusion of the meeting without saying
a word. Later that afternoon, Breitenbucher made a formal Public Records Act request
for out-of-class pay, credit card statements, and personnel costs and expenses associated
with the city manager’s officer. This caused plaintiff to worry he would spin the
information to sow further distrust of her in the community.
On November 16, plaintiff learned that the city council would meet the following
day in a closed session to investigate specific complaints brought against plaintiff.
Plaintiff again felt stressed out and targeted, concerned that Breitenbucher was working
to create a false and damaging narrative about her.
On December 8, the city council issued a written performance evaluation of
plaintiff. It stated that the city council “is not unified in their opinions regarding
[plaintiff’s] performance. While four members rated her between competent (1) and
highly competent (3), [Breitenbucher] consistently rates her performance as ‘poor’ which

5
is significantly lower than the Council majority.” The review stated that Breitenbucher
rated her poorly in part because she was appointed without a nationwide search, implying
that potentially more experienced candidates may have been overlooked. However, the
majority’s summary stated that plaintiff “is viewed as a highly competent City Manager
by the majority of Council,” praising her hard work, composure, transparency, and
leadership. It concluded that the “Council majority appreciates [plaintiff] and believe she
is doing an excellent job for the organization.”
On December 30, plaintiff e-mailed the human resources director and city attorney
stating that her e-mail was a formal complaint and request for a prompt investigation of
Breitenbucher for “bullying, harassing and retaliating against [her].” The e-mail stated
Breitenbucher retaliated and harassed her because she is a woman, and because she
reported his wrongdoing. It further stated that Breitenbucher created a hostile work
environment by commencing an internal investigation of her based on false accusations,
complaining to the grand jury, which prompted an investigation of plaintiff, attempting to
publicly embarrass her, forwarding false and confidential information to a newspaper,
instructing his daughter-in-law (their office receptionist) and son (a recreation supervisor)
to “ ‘document everything’ ” that plaintiff did, and “[l]iking” Facebook posts that spoke
poorly of her and called for her firing. The city attorney responded, agreeing an
independent investigation was warranted.
However, as plaintiff believed defendant had failed to conduct a prompt
investigation or take remedial action, and as she continued to experience adverse impacts
on her employment and mental health, including nightly crying, increased anxiety, and
panic attacks, plaintiff felt she had no choice but to resign. Plaintiff’s last day as city
manager was February 26, 2021.

6
 On July 15, 2021, the San Joaquin County Grand Jury issued a report following
two grand jury investigations into complaints and media reports about city operations.3
B. Procedural history
On July 7, 2021, plaintiff filed this action against the City alleging claims under
the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; the
FEHA) for gender-based harassment (Gov. Code, § 12940, subd. (j)); retaliation for
plaintiff’s complaints of harassment (Gov. Code, § 12940, subd. (h)); failure to prevent
harassment and retaliation (Gov. Code, § 12940, subd. (k)); and “wrongful constructive
termination in violation of the FEHA.” Plaintiff also alleged whistleblower retaliation
under Labor Code section 1102.5. In response, defendant filed an anti-SLAPP motion
asserting that the conduct specified in plaintiff’s complaint arises from protected activity,
and that plaintiff cannot show a probability of prevailing. Defendant also filed a
demurrer to all causes of action.
The trial court heard both motions on the same date. With respect to the anti-
SLAPP motion, it found that the City failed to show that any of plaintiff’s claims arose
from protected activity. It further found that even if defendant had met its burden,
“plaintiff has stated a legally sufficient claim and made a prima facie factual showing
sufficient to sustain a favorable judgment.” The trial court denied the motion without
prejudice and further denied defendant’s request for sanctions. The trial court
simultaneously sustained the demurrer with leave to amend, finding that plaintiff’s
complaint failed to state a cause of action.4

3 The trial court granted judicial notice of the fact of the grand jury investigation
and issuance of its report, but denied judicial notice of the statements and findings of fact
in the report. The City nevertheless discusses the contents of the report in its opening
brief. This is improper.
4 In doing so, the trial court noted that the additional facts asserted in plaintiff’s
opposition to the demurrer, and the facts and evidence sent forth in her opposition to the

7
 Defendant appealed the trial court’s denial of the anti-SLAPP motion.
DISCUSSION
I
California’s Anti-SLAPP Statute
California’s anti-SLAPP statute, codified in section 425.16, permits a “special
motion to strike” when there is 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.”
(§ 425.16, subd. (b)(1).) Such claims must be stricken “unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (Ibid.)
The statute defines four categories of protected activity: “(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).)
“Thus, ruling on an anti-SLAPP motion involves a two-step procedure. First, the
‘moving defendant bears the burden of identifying all allegations of protected activity,
and the claims for relief supported by them.’ [Citation.] At this stage, the defendant

anti-SLAPP motion, added support to her allegations. It found that based on the
additional facts and evidence offered in her oppositions, plaintiff may be able to
adequately allege her claims, so it granted her the opportunity to amend her complaint to
include those facts.

8
must make a ‘threshold showing’ that the challenged claims arise from protected activity.
[Citation.]
“Second, if the defendant makes such a showing, the ‘burden shifts to the plaintiff
to demonstrate that each challenged claim based on protected activity is legally sufficient
and factually substantiated.’ [Citation.] Without resolving evidentiary conflicts, the
court determines ‘whether the plaintiff’s showing, if accepted by the trier of fact, would
be sufficient to sustain a favorable judgment.’ [Citation.] The plaintiff’s showing must
be based upon admissible evidence. [Citation.] The court ‘considers the pleadings and
evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2));
though the court does not weigh the credibility or comparative probative strength of
competing evidence, it should grant the motion if, as a matter of law, the defendant's
evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary
support for the claim.’ [Citation.] Thus, the second step of the anti-SLAPP process
‘establishes a procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation.’ [Citation.]”
(Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 979-980.)
We review an order granting an anti-SLAPP motion de novo, using the same two-
step approach as the trial court. (Alpha & Omega Development, LP v. Whillock
Contracting, Inc. (2011) 200 Cal.App.4th 656, 663.)
II
First Prong: Protected Activity
We first consider whether the City met its burden to show that each of plaintiff’s
causes of action in the complaint arise from protected activity, as defined by section
425.16, subdivisions (b)(1) and (e). (See Bonni, supra, 11 Cal.5th at p. 1015.)
A. “Arising from”
The City contends that plaintiff’s causes of action all arise from protected activity,
because the only specific acts alleged in the complaint are protected under the statute.

9
For her part, plaintiff does not address whether the specific examples of Breitenbucher’s
wrongful conduct alleged in the complaint constitute protected activity. She instead
argues that those allegations are only tangential to her claims; the gravamen of her causes
of action arise from unprotected activity, as demonstrated by her evidence. Thus, she
insists that her claims do not arise from protected speech, as the statute requires.
“[T]he statutory phrase ‘cause of action . . . arising from’ means simply that 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. [Citation.] In the anti-SLAPP context,
the critical point is whether the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech.” (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78, italics omitted.) “ ‘[A]ssertions that are “merely
incidental” or “collateral” are not subject to section 425.16. [Citations.] Allegations of
protected activity that merely provide context, without supporting a claim for recovery,
cannot be stricken under the anti-SLAPP statute.’ ” (See Bonni, supra, 11 Cal.5th at p.
1012, quoting Baral v. Schnitt (2016) 1 Cal.5th 376, 394.)
“[F]or anti-SLAPP purposes discrimination and retaliation claims arise from the
adverse actions allegedly taken, notwithstanding the plaintiff’s allegation that the actions
were taken for an improper purpose. 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 (Wilson).) “A
claim may be struck under the anti-SLAPP statute ‘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.’ [Citation.] Put differently,
to carry its burden at the first step, the defendant in a discrimination suit must show that
the complained-of adverse action, in and of itself, is an act in furtherance of its speech or
petitioning rights.” (Wilson, supra, at p. 890.)

10
 Plaintiff’s complaint alleges Breitenbucher subjected her to unlawful harassment
and retaliation based on the following acts: “(1) forwarding confidential information
discussed during closed sessions to the media; (2) encouraging an employee to send a
letter with false allegations to the City Council for the purpose of initiating an internal
investigation against Plaintiff; (3) working with former Councilmembers and journalists
to publicly embarrass Plaintiff and create a narrative that she was unqualified and
mismanaging the City; and (4) liking social media posts that spoke poorly of Plaintiff and
called for her firing.” She also alleges that Breitenbucher was the only council member
who did not rate her as “ ‘highly competent’ ” on her performance evaluation. She
references several dates on which she complained to the City about Breitenbucher’s
actions, but the City failed to act, and Breitenbucher’s continued harassment and
retaliation created such intolerable working conditions that she felt she had to resign.
These allegations of Breitenbucher’s conduct are the only examples of harassment
or retaliation alleged in plaintiff’s complaint. Plaintiff cannot reasonably argue that the
only specified wrongful acts alleged in her complaint are merely “tangential” to her
claims. Indeed, “ ‘the issues in an anti-SLAPP motion are framed by the pleadings.’
[Citations.] Thus, the act or acts underlying a claim for purposes of an anti-SLAPP
statute is determined from the plaintiffs’ allegations.” (Medical Marijuana, Inc. v.
ProjectCBD.com (2020) 46 Cal.App.5th 869, 883, italics omitted.)
Moreover, even taking plaintiff’s supplemental evidence of defendant’s wrongful
acts into account, which consist of unprotected activity, “[w]hen relief is sought based on
allegations of both protected and unprotected activity, the unprotected activity is
disregarded at [the first] stage. If the court determines that relief is sought based on
allegations arising from activity protected by the statute, the second step is reached.”
(Baral v. Schnitt, supra, 1 Cal.5th at p. 396.) Accordingly, we must consider whether
plaintiff’s causes of action arise from her allegations of Breitenbucher’s behavior, which

11
the City contends is protected, regardless of any unprotected conduct that might also form
the basis of her claims.
First, plaintiff’s harassment claim plainly arises from the allegations of
Breitenbucher’s behavior. Indeed, plaintiff’s complaint alleges that the specified acts
constituted Breitenbucher’s illegal harassment, the complained of adverse action. In
other words, plaintiff pleads that these allegations comprise, at least in part, unwelcome
and pervasive conduct, based on plaintiff’s sex, which created her abusive work
environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264,
277-279.) Her harassment claim thus arises from these allegations.
Next, a claim for both FEHA and whistleblower retaliation requires a showing that
plaintiff engaged in protected activity, that she was thereafter subjected to adverse
employment action by her employer, and there was a causal link between the two. (See
Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 [FEHA
retaliation] (Morgan); Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703,
710 [Labor Code section 1102.5 retaliation].) Here, plaintiff alleges that Breitenbucher
retaliated against her complaints about him by bullying and harassing her so severely that
she had no choice but to quit. Thus, the “wrong” complained of in her retaliation causes
of action is Breitenbucher’s poor treatment of plaintiff, as detailed by those same
allegations in the complaint. Accordingly, plaintiff’s retaliation claims also arise from
plaintiff’s allegations of his behavior.5 Similarly, plaintiff’s cause of action for wrongful

5 We note that “ ‘[e]ssential to a causal link is evidence that the employer was aware
that the plaintiff had engaged in the protected activity.’ ” (Morgan, supra, 88
Cal.App.4th at p. 70.) Here, plaintiff’s pleadings do not disclose the timing of
Breitenbucher’s specified actions, i.e., whether they occurred before or after he learned of
plaintiff’s complaints. Our review of the evidence shows that the poor performance
review occurred after he was aware of plaintiff’s whistleblower and harassment
complaints, and plaintiff’s allegation that Breitenbucher communicated with former
council members appears to relate to an incident from October 14, following her

12
constructive termination arises from these allegations, as she asserts the same “egregious
conduct” created such intolerable working conditions that she had no reasonable
alternative but to resign. (See Pinter-Brown v. Regents of University of California (2020)
48 Cal.App.5th 55, 60-61.)
Plaintiff’s claim for failure to prevent harassment and retaliation, however, is
distinct. To prove this cause of action, plaintiff must show that her employer failed to
take reasonable steps to prevent harassment or retaliation, and that this failure caused
injury, damage, loss, or harm to the employee. (See Trujillo v. North County Transit
Dist. (1998) 63 Cal.App.4th 280, 289.) Thus, the adverse action underlying this claim is
the employer’s failure to act, not the alleged harassment or retaliation itself. (See Wilson,
supra, 7 Cal.5th at p. 890.) Here, the City’s failure to take reasonable steps to prevent
harassment or retaliation does not arise from Breitenbucher’s alleged actions, but rather
the City’s alleged inaction. As a result, plaintiff’s third cause of action for failure to
prevent under the FEHA does not arise from the allegations that the City contends are
protected activity.
Accordingly, with respect to all but one of plaintiff’s claims, we must consider
whether defendant has shown that Breitenbucher’s alleged conduct stated in the
complaint constitutes protected activity.
B. Protected activity
1. Communications with the media and former council members
We first address plaintiff’s allegations that Breitenbucher (1) disclosed
confidential information to the media; and (2) worked with former council members and

whistleblower complaint, but before her harassment complaint. Additionally, plaintiff
provides no admissible evidence to support her allegation that Breitenbucher encouraged
an employee to send a letter with false allegations to the city council for the purpose of
initiating an internal investigation against plaintiff, and thus the timing of this allegation
cannot be discerned from the record.

13
journalists to publicly embarrass plaintiff and create a narrative that she was unqualified
and mismanaging the City. In plaintiff’s declaration, she explains that Breitenbucher
forwarded a city employee’s resignation letter, which spoke poorly of plaintiff, to a
journalist at a newspaper. She further declares that following a confidential meeting,
during which she shared her view that a deal between the City and the Great Wolf Lodge
was a “bad deal,” Breitenbucher relayed plaintiff’s confidential statements to previous
council members, who then contacted the City to express their disagreement with
plaintiff.
As relevant here, section 425.16, subdivision (e)(4) protects “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.” With
respect to this “catchall” provision, our Supreme Court recently defined a two-step
analysis to determine its applicability: “First, we ask what ‘public issue or [] issue of
public interest’ the speech in question implicates—a question we answer by looking to
the content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask what functional
relationship exists between the speech and the public conversation about some matter of
public interest. It is at the latter stage that context proves useful.” (FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-150.) To assess what constitutes a public
issue, courts consider “whether the subject of the speech or activity ‘was a person or
entity in the public eye’ or ‘could affect large numbers of people beyond the direct
participants’ [citation] . . . and whether the activity ‘occur[red] in the context of an
ongoing controversy, dispute or discussion’ [citation] or ‘affect[ed] a community in a
manner similar to that of a governmental entity.’ ” (Id. at pp. 145-146.) Subdivision
(e)(4) of section 425.16 does not solely apply to statements made in a public forum; it
also “applies to private communications concerning issues of public interest.” (Hailstone
v. Martinez (2008) 169 Cal.App.4th 728, 736.)

14
 Here, Breitenbucher’s communications discussed plaintiff’s performance as city
manager. The city manager is a high-profile local government employee, placed squarely
in the public eye. Her actions and competency as city manager are a matter of public
interest to city residents, who are directly affected by her decisions. For example, the
public discussed her job performance on social media, newspapers wrote about her
actions as city manager, and a grand jury conducted an investigation of her actions as city
manager. Thus, Breitenbucher’s communications with the media and former council
members, related to plaintiff’s job performance, were in furtherance of his free speech
rights and relate to a public issue and thus constitute protected activity under the statute.
2 Social media posts
Plaintiff alleges that Breitenbucher harassed and retaliated against her by “liking”
social media posts critical of her performance. Plaintiff’s evidence discloses that
Breitenbucher “liked” a post referencing plaintiff’s decision to fire the chief of police,
which included the comment, “Hopefully [plaintiff will] be gone soon.” He also liked a
post with an article referring to plaintiff as a “ ‘newbie’ ” and “ ‘hatchet gal,’ ” which a
former council member shared on Facebook.
“Web sites accessible to the public . . . are ‘public forums’ for purposes of the
anti-SLAPP statute.” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.) Here,
Breitenbucher “liked” comments and an article in a public forum, Facebook. Further, the
content of the posts implicates an issue of public interest: plaintiff’s actions as city
manager, including her decision to fire the chief of police. (§ 425.16, subd. (e)(4).)
Indeed, the public nature of the Facebook posts, commented on by other city residents,
support the conclusion that the posts addressed public issues. Thus, Breitenbucher’s
activity on social media is protected activity as actions made in furtherance of his right of
free speech, related to matters of public interest. (See, e.g., Briganti v. Chow (2019) 42
Cal.App.5th 504, 508-509 [Facebook comments criticizing motivational speaker are

15
protected activity]; Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1253-1254
[celebrity gossip posted on social media is protected activity].)
3. Employee letter
Plaintiff further alleges that Breitenbucher encouraged an employee to send a
letter with false allegations to the city council, intending to trigger an internal
investigation of plaintiff. The trial court sustained the City’s objection to the portion of
plaintiff’s declaration in which she expounds upon this allegation, and plaintiff does not
challenge the evidentiary ruling on appeal. Thus, we will consider plaintiff’s allegation
as pled. In doing so, we conclude that it constitutes protected activity under subdivision
(e)(4) of section 425.16. Specifically, Breitenbucher’s alleged encouragement of a city
employee to submit complaints about plaintiff’s job performance to the city council was
made in furtherance of his rights to free speech, and related to the public interest in her
performance.
4. Plaintiff’s performance review
Plaintiff alleges that Breitenbucher was the only council member who did not rate
her as “highly competent” in her performance evaluation. Again, the performance
evaluation of a city manager also falls within the catchall anti-SLAPP provision as “any
other conduct in furtherance of the exercise of . . . the constitutional right of free speech
in connection with a public issue or an issue of public interest” (§ 425.16, subd. (e)(4)),
as a government body’s evaluation of one of its leaders is free speech conduct in
connection with an issue of public interest.
Based on the foregoing, the City has met its burden to establish that plaintiff’s
causes of action arise, at least in part, from protected activity under section 425.16,
subdivision (e).

16
 III
Prong Two: Probability of Prevailing
Having found that plaintiff’s claims arise from protected activity, we turn to the
second step of the analysis, whether plaintiff has established a probability of prevailing
on her claims. (§ 425.16, subd. (b)(1).) Defendant insists the answer is no, contending
that because plaintiff’s complaint fails to state facts sufficient to constitute a cause of
action (as the trial court found in its ruling on defendant’s demurrer), plaintiff cannot
submit evidence to supplement her allegations, such that if granted leave to amend,
plaintiff could potentially allege a cause of action and show a probability of prevailing.
Plaintiff does not directly address this issue, instead arguing that her evidence submitted
in connection with her opposition to the City’s anti-SLAPP motion, considered in
conjunction with her complaint, demonstrates a probability of prevailing.
A. Applicable legal principles
“In order to establish a probability of prevailing on the claim (§ 425.16, subd.
(b)(1)), a plaintiff responding to an anti-SLAPP motion . . . ‘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.’ [Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821.)
“[T]he plaintiff’s second-step burden is a limited one. The plaintiff need not prove
her case to the court [citation]; the bar sits lower, at a demonstration of ‘minimal merit.’ ”
(Wilson, supra, 7 Cal.5th at 891.) To meet her burden, “ ‘plaintiff cannot rely on the
allegations of the complaint, but must produce evidence that would be admissible at
trial.’ ” (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 866-867.)
B. Statutory requirement to consider both pleadings and evidence
As an initial matter, we note that the allegations in plaintiff’s complaint are sparse.
Nonetheless, the purpose of the anti-SLAPP statute “is to dismiss meritless lawsuits

17
designed to chill the defendant’s free speech rights at the earliest stage of the case.”
(Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 209.)
“By definition, however, when the plaintiff demonstrates a probability of prevailing on
the merits, his or her complaint is not a SLAPP. With nothing to unmask, the policy
concerns implicated by the anti-SLAPP statute dissipate, and the action proceeds as an
ordinary lawsuit.” (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at p. 871 [permitting
amendment of potentially facially deficient complaint where the plaintiff showed
probability of prevailing through evidence].)
Moreover, the anti-SLAPP statute requires that the plaintiff produce—and the
court consider—supporting and opposing affidavits in connection with the motion.
(§ 425.16, subd. (b)(2).) Further, the statute permits specified discovery on issues raised
in the motion to strike, upon a showing of good cause. (§ 425.16, subd. (g); Slauson
Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1021.) Plaintiff’s burden of
producing evidence “is aimed at meeting the second prong of the anti-SLAPP statute, i.e.,
that a plaintiff has a probability of prevailing on the claim, only after a defendant has
made a prima facie showing on the first prong.” (Martin v. Inland Empire Utilities
Agency (2011) 198 Cal.App.4th 611, 630, original italics.) Accordingly, the statute
mandates consideration of evidence beyond the pleadings, and contemplates “further
development of the factual record” after a complaint has been filed. (Slauson
Partnership, supra, at p. 1021.)
Here, as we will explain, the evidence presented by plaintiff, which we are
obligated to consider, shows that her case is not the type of meritless, vexatious lawsuit
the anti-SLAPP statute is meant to protect against. Accordingly, considering both the

18
intent and language of the statute, we find no reason to limit our probability of prevailing
analysis to the pleadings, as defendant suggests.6
C. Probability of prevailing
We turn next to consider whether plaintiff has shown a probability of prevailing
on each of her causes of action.
1. Harassment: hostile work environment
To state a claim for hostile work environment, plaintiff must show she was
subjected to conduct that was (1) “unwelcome”; (2) “because of sex”; and
(3) “sufficiently severe or pervasive to alter the conditions of her employment and create
an abusive work environment.” (Lyle v. Warner Brothers Television Productions, supra,
38 Cal.4th at p. 279.) “ ‘Sex-based hostile or abusive environmental claims . . . arise
when “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’
. . . that is “sufficiently severe or pervasive to alter the conditions of the victim’s
employment.’ ” (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109
Cal.App.4th 153, 160-161.) Offensive conduct need not be sexual in nature; “the
important and underlying inquiry in these cases was whether the conduct in question
conveyed a message that demeans employees on the basis of their sex.” (Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 469.)
Plaintiff offers unrebutted proof that Breitenbucher repeatedly demeaned and
disrespected her, undercutting her authority and credibility by, among other things,
sending an employee’s resignation letter criticizing plaintiff to a journalist; circumventing
plaintiff by contacting city staff directly; speaking in a dismissive and patronizing way

6 This is particularly so where, as here, the trial court has granted plaintiff leave to
amend in its ruling on defendant’s demurrer. Thus, plaintiff has an existing procedural
path to amendment on remand.

19
towards plaintiff and her female staff while treating male city employees with respect;
and “liking” social media posts that spoke poorly of plaintiff.
Further, Breitenbucher repeatedly referred to plaintiff as “ ‘unqualified’ ” and
“ ‘inexperienced,’ ” despite prior male city managers having the same level of
experience. Both plaintiff and Blackmon viewed Breitenbucher’s characterization of
plaintiff as “ ‘inexperienced’ ” or “ ‘unqualified’ ” to be “code” for “ ‘young woman.’ ”
Blackmon observed that Breitenbucher was “focused on the narrative that [the] three
female leaders were young, inexperienced, and did not know what [they] were doing.”
Plaintiff indicated that Breitenbucher would scream at her female staff and question their
position. Unlike the other council members, Breitenbucher refused to work with plaintiff
or Blackmon. When plaintiff and Blackmon met with Kearns to communicate concerns
that Breitenbucher targeted them because they were women in high-ranking positions,
Kearns advised them to simply wait two years until the next election, as Kearns did not
think Breitenbucher would run for reelection. Plaintiff complained several more times to
her employer’s human resources director about gender-based harassment, including to
Breitenbucher himself. After complaining to Breitenbucher and others, Breitenbucher
forwarded complaints about plaintiff to the city attorney for investigation, physically
intimidated plaintiff by loudly slamming his fists on her desk, rated plaintiff as “poor” on
her performance evaluation, and submitted a broad Public Records Act request for
information from the city manager’s office. Eventually, after plaintiff’s mental health
deteriorated to the point where she was crying daily and experiencing anxiety and panic
attacks due to Breitenbucher’s treatment, and without any meaningful responsive actions
from defendant, plaintiff resigned.
Plaintiff’s evidence meets the low bar required to show a probability of prevailing
on her FEHA claims, i.e., a “minimum level of legal sufficiency and triability.” (Linder
v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.) Specifically, her evidence could

20
support a finding of harassment on the basis that she was subjected to pervasive hostile
conduct based on her gender, which created an abusive work environment.
2. Retaliation
Plaintiff’s evidence also provides a basis for the trier of fact to conclude that
defendant retaliated against her for (1) reporting Breitenbucher’s discriminatory
harassment (FEHA retaliation); and (2) reporting that Breitenbucher repeatedly violated
the Brown Act, and failed to comply with the Public Records Act and the Manteca
Municipal Code (Labor Code section 1102.5 retaliation).
As discussed, a claim for retaliation under the FEHA or Labor Code section
1102.5 requires a plaintiff to show that (1) he or she engaged in a protected activity;
(2) the employer subjected the employee to an adverse employment action; and (3) a
causal link existed between the protected activity and the employer’s action. (Moore v.
Regents of University of California (2016) 248 Cal.App.4th 216, 244; Lawson v. PPG
Architectural Finishes, Inc., supra, 12 Cal.5th at p. 710.) Here, plaintiff alleges that
defendant retaliated against her for making complaints by making her working conditions
so unbearable that she was left with no reasonable choice but to resign. (See Steele v.
Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [“ ‘Constructive
discharge, like actual discharge, is a materially adverse employment action’ ”].) “ ‘ “The
causal link [between the protected activity and adverse action] may be established by an
inference derived from circumstantial evidence, ‘such as the employer’s knowledge that
the [employee] engaged in protected activities and the proximity in time between the
protected action and alleged[] [retaliation].’ ” [Citation.]’ [Citation.]” (Morgan, supra,
88 Cal.App.4th at pp. 69-70.)
Here, plaintiff produced evidence showing that after she complained to
Breitenbucher and others and, thereafter, Breitenbucher pursued multiple means of
investigating plaintiff, was the only council member who was critical of her job
performance in her performance review, and engaged in patronizing and intimidating

21
behavior towards plaintiff. For example, Breitenbucher initiated a Public Records Act
investigation of the city manager’s office directly after attending the meeting where he
became angry because plaintiff complained of his Brown Act violations, told multiple
former council members of plaintiff’s potentially unpopular view, articulated in a closed
council session, about the Great Wolf Lodge deal, causing them to complain to the City
about plaintiff. He also angrily pounded on the table immediately across from plaintiff
after plaintiff complained of his harassment, which frightened her. And, although
Breitenbucher’s aggressive behavior occurred in front of the human resources director,
the City failed to take any corrective action in response. Indeed, plaintiff shows that
defendant took no steps to address the situation, until agreeing to initiate an investigation
more than six months after plaintiff’s first complaint.
The foregoing evidence could support a finding that plaintiff complained to
defendant and Breitenbucher and, that in response, Breitenbucher intentionally created,
and the City knowingly permitted, “working conditions that were so intolerable or
aggravated at the time of the employee’s resignation that a reasonable employer would
realize that a reasonable person in the employee’s position would be compelled to
resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.)
3. Wrongful constructive termination
Plaintiff’s fifth cause of action is labelled “wrongful constructive termination in
violation of the FEHA.” However, plaintiff provides no specific statutory authority for
this as a separate cause of action under the FEHA, and we could find none. (See Gov.
Code, §§ 12940-12953.) To the extent it is alleged as a common law claim for wrongful
constructive termination in violation of public policy (Tameny v. Atlantic Richfield Co.
(1980) 27 Cal.3d 167, 178), defendant, as a government entity, is immune from common
law tort liability. (Gov. Code, § 815, subd. (a); Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876, 899.) Plaintiff does not explain or address this issue in
her brief.

22
 While plaintiff has provided sufficient evidence to support a finding that she was
constructively terminated, she has not met her burden to show that she can bring this
claim as a separate statutory cause of action. Nor has she shown that she can bring it as a
common law claim against defendant, a public entity. Accordingly, plaintiff has not
shown a probability of prevailing on this cause of action, and it is subject to being
stricken.
DISPOSITION
We affirm the trial court’s denial of the anti-SLAPP motion as to the first through
fourth causes of action, but reverse as to the fifth cause of action for wrongful
constructive termination. The matter is remanded to the trial court to enter a new order
consistent with this opinion. Each party shall bear its own costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(3), (5).)

KRAUSE , J.

We concur:

HULL , Acting P. J.

BOULWARE EURIE , J.

23