Esquith v. LA Unified School Dist.

Filed 7/20/17 Esquith v. Los Angeles Unified School Dist. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RAFE ESQUITH,
Plaintiff and Respondent,
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant.
B276432
(Los Angeles County
Super. Ct. No. BC591067)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark V. Mooney, Judge. Affirmed.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt,
David Fishman and Zareh A. Jaltorossian for Defendant and
Appellant.
Geragos and Geragos, Mark J. Geragos, Zack V. Muljat and
Ben J. Meiselas for Plaintiff and Respondent.

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INTRODUCTION
Plaintiff Rafe Esquith, a teacher, sued his employer, Los
Angeles Unified School District (LAUSD), LAUSD
superintendent Ramon C. Cortines, and LAUSD employee David
R. Holmquist, alleging retaliation and discrimination. Esquith
alleged that he was an outspoken critic of certain LAUSD policies
and he was nearing retirement, and as a result defendant
retaliated and discriminated against him by removing him from
his teaching position and conducting a baseless, meandering
investigation designed to damage Esquith’s career and
reputation. Defendants filed a special motion to strike under
Code of Civil Procedure section 425.16 (section 425.16), arguing
that Esquith’s causes of action arose from the employment
investigation, which is a protected activity. The trial court
denied the motion, and defendants appealed.
We affirm. When a plaintiff has alleged that certain
employment actions form the basis for retaliation and
discrimination claims, the defendant employer may not
successfully move to strike the plaintiff’s complaint under section
425.16 by asserting that those very actions were protected
activity under section 425.16, subdivision (e). Because Esquith
alleged that the investigation itself was retaliatory and
discriminatory, the investigation was not protected activity under
section 425.16, and the trial court did not err in denying the
motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
Esquith filed a complaint on August 13, 2015, alleging
eight causes of action: (1) defamation per se, (2) defamation per
quod, (3) intentional infliction of emotional distress, (4)

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conversion, (5) retaliation, (6) age discrimination, (7) unfair
business practices, and (8) declaratory relief/reinstatement. The
following facts are alleged in the complaint.
Esquith alleged that he was an “internationally-renowned
and award-winning teacher” at Hobart Boulevard Elementary
School (Hobart) in LAUSD. He has written books about teaching
and he runs a nonprofit organization, the “Hobart
Shakespeareans,” “which provides extracurricular music and arts
education to local students.” Esquith said he was also an
“outspoken critic of LAUSD’s collusion with big business and its
wasteful spending on ill-advised programs.” As a result, Esquith
asserted, “LAUSD and its agents embarked on a campaign to
silence Mr. Esquith.”
On March 19, 2015, the Hobart principal told Esquith that
he was being counseled to “be careful about what you say in front
of students.” The principal later explained that the basis for this
discussion was a joke about nudity Esquith told in front of
students. Esquith asserted this was a misunderstanding about a
quote from The Adventures of Huckleberry Finn by Mark Twain.
About a month after the initial meeting, the principal told
Esquith that a complaint about him had been forwarded to the
California Commission on Teacher Credentialing. On May 27,
2015, the California Commission on Teacher Credentialing closed
the investigation on Esquith “having found no evidence of
misconduct.” A copy of a letter from the California Commission
on Teacher Credentialing was attached to the complaint.
Esquith received notice around April 10, 2015 that he was
being stripped of his classroom duties due to allegations of
serious misconduct. He was required to report to “teacher jail”:
an industrial building in which teachers “are forced to spend

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their days staring at cubicle walls and not accessing electronics.”
A gag order was imposed, barring Esquith from communicating
with students or their parents. Esquith asserted that he was not
informed of the allegations against him or the basis of LAUSD’s
investigation.
Esquith alleged that LAUSD continued a baseless
investigation “designed to cook up negative facts and smear Mr.
Esquith’s reputation in the community.” Students from Esquith’s
class were “grilled” using “heavy-handed interrogation tactics”
about Esquith’s actions. Concerned parents were not told what
the investigation was about, and Esquith was not allowed to
respond to parent inquiries due to the gag order. On May 27,
2015, LAUSD investigators met with Esquith and questioned
him. Esquith alleged that the questions “followed no
conventional interviewing protocol or any appropriate or logical
line of questioning.”
LAUSD also investigated the Hobart Shakespeareans,
which according to the complaint is “a completely nonprofit
organization with an independent board of directors.” The
Hobart Shakespeareans “sponsor numerous trips and an annual
performance of a Shakespeare play each year.” Board members
were questioned about these student trips, and Esquith was told
that an upcoming trip to a Shakespeare festival had to be
cancelled because the “trip is not authorized or sponsored by the
District.” LAUSD’s letter requesting that the trip be cancelled
was attached to the complaint. The trip and the students’
planned performance of the annual Shakespeare play were
cancelled.
Esquith filed a government tort claim on June 22, 2015,
which Esquith alleges gained media attention. LAUSD then “set

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a plan in motion to orchestrate bizarre abuse allegations
designed to retaliate against Mr. Esquith for bringing a notice of
intent to sue.” “LAUSD’s mouthpiece, [defendant] David R.
Holmquist, arranged for an elderly woman to call a major media
outlet to claim that her son was now accusing Mr. Esquith of
abuse dating [back] forty years, when Mr. Esquith was a
teenager.” Thereafter, “Mr. Holmquist proceeded to inform the
media that the investigation would now be looking into this new
allegation.” Esquith alleged that defendants’ actions caused him
to suffer a stress-induced thrombosis, for which he was
hospitalized.
On July 8, 2015, counsel for the Hobart Shakespeareans
received a letter from a law firm retained by LAUSD requesting
15 years’ worth of financial data. After Esquith’s counsel
responded with a letter, LAUSD’s firm “wrote directly to the
Hobart Shakespeareans on or about July 20, 2015 to point out
that the investigation is now actually directed at Mr. Esquith for
potential ‘government ethics’ breaches pertaining to the
Shakespeareans.” Esquith alleged that he had never been
accused of violating government ethics laws with respect to the
Hobart Shakespeareans, and this letter was “specifically
orchestrated to assassinate Mr. Esquith’s character.”
On July 19, Superintendent Cortines issued a press release
regarding the Esquith investigation that was “disseminated to
major media outlets.” The press release stated, “This is a very
complex issue. While I respect that this teacher is extremely
popular—and has been for some time—in the briefings that have
been given to me, there are serious issues that go beyond the
initial investigation. The Los Angeles Unified School District will
not be rushed to make a decision and will complete our

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investigation with the highest level of integrity. The safety and
security of every District student will remain our number one
priority.” Esquith alleged that the press release “was designed to
retaliate against Mr. Esquith for consistently and publicly
opposing many of LAUSD’s wasteful policies and practices.” He
also alleged that the continuing investigation revolved around
“nothing more than baseless allegations manufactured by
LAUSD after the initial complaint against Mr. Esquith was
disproven and LAUSD realized it faced catastrophic liability
based on the manner and methods it used to remove the world’s
most well-known teacher from his classroom because of a Mark
Twain quote.”
Esquith also alleged that LAUSD “conducted a raid of
Room 56” (Esquith’s classroom) and “stole property totaling
approximately $100,000.00 in musical instruments and
educational materials, thirty laptop computers, hundreds of
copies of classical literature, and other items belonging to
students and paid for by donated funds.” Esquith alleged that
LAUSD also “stole Mr. Esquith’s National Medal of Arts,
presented to him personally by the President of the United States
of America.”
In the first cause of action for defamation per se, Esquith
contended that defendants harmed him by broadcasting “the
false notion that Plaintiff had engaged in serious misconduct
towards his students and in his relationship with the Hobart
Shakespeareans.” The statements at issue include LAUSD
statements to students, statements to the press, and Holmquist’s
“fabrications.” The statements “charge [Esquith] with criminal
conduct, directly injure him with respect to his profession, and
impute upon him a want of chastity.”

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The second cause of action for defamation per quod alleged
defamation for the same statements to students and the media.
The second cause of action also alleged that Esquith suffered
special damages.
The third cause of action for intentional infliction of
emotional distress incorporated the general allegations discussed
above. It alleged that defendants’ conduct was outrageous, and
that defendants intended to cause Esquith emotional distress or
acted with a reckless disregard for the probability that Esquith
would suffer severe emotional distress as a result of defendants’
conduct.
The fourth cause of action for conversion is asserted on
behalf of Esquith, “his Students, and the Hobart
Shakespeareans.” It alleges that Esquith, his students, and the
Hobart Shakespeareans had a right to possess the property taken
from Room 56, and defendants substantially interfered with their
rights when they “took possession of said property while Plaintiff
was held in LAUSD’s teacher jail.” Esquith alleged that he and
the students were harmed by the taking of the property.
The fifth cause of action for retaliation alleged that the Fair
Employment and Housing Act (FEHA) prohibits retaliation
against employees for exercising their rights. Esquith alleged
that defendants retaliated against him “by removing him from
his teaching position, burdening [him] with a gag order, placing
him in teacher jail, and levying allegations of abuse against him
in part because he opposed LAUSD’s relationship with big
business, criticized many of LAUSD’s policies and initiatives, and
because he filed a claim for damages.”
The sixth cause of action for age discrimination alleged that
LAUSD has a pattern of retaliating against teachers nearing

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retirement age “to usurp their benefits and wages and to funnel
them to its other misguided practices. . . .” Esquith alleged this
practice violated Government Code section 12940, subdivision (a),
that he was over 40 years old at the time defendants acted, and
that his age was a substantial motivating factor in his
constructive discharge.
In the seventh cause of action for unfair business practices,
Esquith alleged that defendants violated Business and
Professions Code section 17200, et seq. He alleged defendants
improperly removed him from his teaching position, failed to
inform him of the charges against him, placed him in teacher jail,
failed to allow him to defend himself, conducted interviews with
students intended to defame his character, and released
defamatory statements to the press.
In the eighth cause of action for declaratory relief, Esquith
sought a declaration that he could return to his teaching duties.
B. Defendants’ anti-SLAPP motion1
Defendants filed a special motion to strike Esquith’s
complaint under section 425.16. Defendants asserted the
following facts, and filed several declarations in support of their
factual assertions. Esquith was initially investigated for “using
sexually inappropriate language” in the presence of fifth-grade
students. Esquith was placed on administrative leave, and he
“was not required to report to the Educational Service Center on
a daily basis; he was required to remain at home during working
hours.” The LAUSD investigation “revealed serious allegations of
highly inappropriate conduct” by Esquith. Defendants also
1 “SLAPP” is an acronym for “strategic lawsuit against
public participation.” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 57 (Equilon).)

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contended that their press releases were responses to press
statements by Esquith.2
Defendants argued that Esquith’s “entire complaint arises
from LAUSD’s investigations of child molestation by Plaintiff
Rafe Esquith, which is protected activity under [section 425.16].”
Defendants asserted that “each cause of action relies on the same
set of facts: actions taken by District personnel as a part of the
process of investigating allegations that Plaintiff engaged in
sexual misconduct.” Defendants contended that these actions
were in furtherance of their rights to free speech and petition.
Defendants also asserted that Esquith could not show a
probability of prevailing on the merits. For the defamation
causes of action, defendants argued that no defamatory
statements were made, and defendants’ conduct was privileged
under Civil Code section 47. Defendants included with their
motion LAUSD news statements dated June 19, 2015 and June
26, 2015. Defendants contended that Esquith’s causes of action
for intentional infliction of emotional distress and conversion had
no merit because defendants cannot be liable for common law
torts under the Government Claims Act, Government Code
section 810, et seq. Defendants argued that the fifth cause of
action for retaliation and the sixth cause of action for age
discrimination failed because Esquith had not engaged in
2 Defendants’ motion also included descriptions of events
and evidence that post-date Esquith’s complaint. Defendants
include in their brief on appeal a host of accusations against
Esquith that purportedly were discovered during LAUSD’s
investigation. Events occurring after the complaint were filed
have no relevance to whether Esquith’s claims arose from
protected activity. Accordingly, we do not address those
accusations here.

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protected activity under FEHA, and Esquith’s claims lacked a
causal nexus. Defendants also asserted that as a public entity
and public entity employees, they could not be liable under
Esquith’s seventh cause of action for unfair business practices.
Finally, defendants argued that Esquith’s cause of action for
declaratory relief was an “equitable, derivative remedy” that
must be dismissed because the other causes of action lacked
merit.
C. Esquith’s opposition and defendants’ reply
Esquith opposed defendants’ motion. Esquith argued that
the complaint “is based on conduct that precedes August 13,
2015,” the date the complaint was filed, and defendants’
arguments and evidence regarding later events were
inappropriate. Esquith asserted that his claims were not based
on conduct arising from protected activity, because Esquith
alleged that defendants’ actions were “without a legitimate,
lawful connection to any official proceeding.” He argued that
retaliation, age discrimination, conversion, and intentional
infliction of emotional distress do not constitute protected
activity. Esquith acknowledged that the press statements were
speech, but said they did not involve a public issue: “Mr.
Holmquist was not speaking on a public issue, he was creating a
false issue and injecting [it] into a public forum.”
Esquith also argued that he had a probability of prevailing
on the merits. He asserted that defendants’ statements about
him were false and defamatory, and they were not privileged
because there were outside the scope of any reasonable
investigation. Esquith contended that defendants were not
immune from liability for intentional infliction of emotional
distress or conversion because the employee defendants were not

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immune, and public entities may be liable for their employees’
actions. Esquith argued that defendants were incorrect that his
FEHA claims were not based on protected activity, because
Esquith’s criticism of LAUSD’s programs was protected, and
defendants’ actions were retaliatory in nature. He also asserted
that the eighth cause of action for declaratory relief would prevail
along with the other causes of action.
In reply, defendants reasserted that their investigation of
Esquith was an official proceeding authorized by law, and
therefore it was protected activity under section 425.16.
Defendants also argued that Esquith failed to demonstrate a
probability of prevailing on the merits for any of his causes of
action.
D. Court ruling
At the hearing on the motion, the court said the defamation
causes of action and the intentional infliction of emotional
distress cause of action likely involved protected activity because
they focused on statements by defendants. The court asked
defense counsel how the retaliation and age discrimination
causes of action involved protected activity, and defense counsel
responded that all causes of action “arose out of the investigation
and the official proceeding.” The court said that the fifth cause of
action for retaliation did not say anything about the
investigation. Defense counsel argued that it was all tied
together, because the alleged retaliation was part of the
investigation. The court disagreed, saying, “To the extent that
there was this investigation ongoing, that’s not part of the
retaliation claim or the age discrimination claim. If it is at all, it
is, at most, incidental to the gravamen of the complaint.” The
court also pointed out that Esquith alleged the retaliation was in

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response to his criticism of LAUSD, and the investigation was
only pretextual. Esquith’s counsel agreed, stating that FEHA
claims would be meaningless if an employer could escape liability
by simply arguing that an investigation was pending.
The court also asked defense counsel how Esquith’s
conversion cause of action was based on protected activity.
Defense counsel argued that the seizures were also part of the
investigation. Defense counsel also asserted that Esquith failed
to present evidence to show a probability of prevailing. The court
said, “Oh, yeah. The burden is to come forward with evidence
after we have met the first prong, and . . . I don’t see how we get
past the first prong on the – the conversion, retaliation, age
discrimination.”
The court said to defense counsel, “Now, I think you
probably [passed] the first prong on [causes of action] one, two,
and three and so that shifts the burden except . . . [your] Anti-
SLAPP motion is to the entire complaint, which you can do. You
can seek to strike an entire complaint, but you know, if anything
survives, then I can’t strike the entire complaint.” Defense
counsel argued that the entire complaint should be stricken, but
if it were not then at least it should be stricken as it related to
the individual defendants. The court stated that defendants did
not move to strike any portions of the complaint as to individual
defendants or causes of action in their motion, stating that “[i]t
wasn’t spelled out either in the points and authorities or the
notice or the reply.”
The court concluded, “The gravamen of the action in terms
of the essential [sic] the fifth and sixth causes of action, they were
his employment claims that were not related to First Amendment
activity. So I am going to deny the special motion to strike.”

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Defendants timely appealed. (Code Civ. Proc. § 904.1,
subd. (a)(13).)
STANDARD OF REVIEW
“‘Review of an order granting or denying a motion to strike
under section 425.16 is de novo. [Citation.] We consider “the
pleadings, and supporting and opposing affidavits . . . upon which
the liability or defense is based.” (§ 425.16, subd. (b)(2).)
However, we neither “weigh credibility [nor] compare the weight
of the evidence. Rather, [we] accept as true the evidence
favorable to the plaintiff [citation] and evaluate the defendant’s
evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Flatley
v. Mauro (2006) 39 Cal.4th 299, 325-326.)
DISCUSSION
“Section 425.16, subdivision (b)(1) requires the court to
engage in a two-step process. First, the court decides whether
the defendant has made a threshold showing that the challenged
cause of action is one arising from protected activity. 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. (§ 425.16, subd. (b)(1).) If the
court finds such a showing has been made, it then determines
whether the plaintiff has demonstrated a probability of
prevailing on the claim. Under section 425.16, subdivision (b)(2),
the trial court in making these determinations considers ‘the
pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.’” (Equilon,
supra, 29 Cal.4th at p. 67.)

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A. Prong One: Arising from protected activity
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1062 (Park).) “[I]n ruling on an anti-SLAPP motion, courts
should consider the elements of the challenged claim and what
actions by defendant supply those elements and consequently
form the basis for liability.” (Park, supra, at p. 1063.)
Defendants argue that each of Esquith’s causes of action
meet the first prong of the anti-SLAPP test because they “arise
from protected activity—LAUSD’s official investigation.” Under
section 425.16, subdivision (e)(2), 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’
includes . . . 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)(2).) In
general, an investigation into an employee’s conduct in
connection with public employment is considered to be protected
activity. (Miller v. City of Los Angeles (2008) 169 Cal.App.4th
1373, 1383 (Miller).)
B. Prong one in employment discrimination and
retaliation cases
Discriminatory, harassing, and retaliatory employment
actions, however, do not arise from protected activity. Here,
Esquith alleged that LAUSD’s investigation was improper and
baseless, and was designed to “cook up negative facts and smear
Mr. Esquith’s reputation.” He alleged that the investigation was
undertaken because LAUSD feared “catastrophic liability based

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on the manner and methods it used to remove” Esquith from his
classroom duties. Esquith also alleged that LAUSD’s press
release “was designed to retaliate against Mr. Esquith for
consistently and publicly opposing many of LAUSD’s wasteful
policies and practices.” Esquith asserted that defendants
publicly accused him of sexual misconduct in retaliation for
Esquith’s filing a claim for damages. He asserted that the “ever-
evolving ‘investigation’ was specifically orchestrated to
assassinate Mr. Esquith’s character.”
In a case in which a plaintiff has alleged discrimination,
harassment, or retaliation by an employer, an investigation or
communication alleged to have furthered that intent is not
considered protected activity. Even if the defendants’ actions fall
within a category typically considered to be protected activity, it
“does not mean that defendants’ alleged discrimination and
retaliation against plaintiff . . . was also an act in furtherance of
its speech rights.” (Wilson v. Cable News Network, Inc. (2016) 6
Cal.App.5th 822, 834.) To the contrary, in employment
discrimination and retaliation cases, “[d]iscrimination and
retaliation are not simply motivations for defendants’ conduct,
they are the defendants’ conduct.” (Id. at p. 835.)
The Supreme Court recently addressed this issue in Park,
supra, 2 Cal.5th 1057. In Park, the plaintiff, a professor, alleged
that his employer university discriminated against him based on
his national origin when it denied him tenure. The plaintiff sued
under FEHA, and the university filed an anti-SLAPP motion
arguing that the lawsuit “arose from its decision to deny [Park]
tenure and the numerous communications that led up to and
followed that decision, these communications were protected
activities.” (Park, supra, 2 Cal.5th at p. 1061.)

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The Supreme Court disagreed. Park’s complaint centered
around allegations that he had been improperly denied tenure.
Although a number of communications suggested that the
motivation for the university’s decision related to Park’s national
origin, those communications did not make up the gravamen of
Park’s complaint. “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.” (Park,
supra, 2 Cal.5th at p. 1068.)
The Court noted that several “[c]ourts presented with suits
alleging discriminatory actions have taken . . . care not to treat
such claims as arising from protected activity simply because the
discriminatory animus might have been evidenced by one or more
communications by a defendant.” (Park, supra, 2 Cal.5th at p.
1065.) These cases are distinguishable from typical anti-SLAPP
actions because “[w]hat gives rise to liability is not that the
defendant spoke, but that the defendant denied the plaintiff a
benefit, or subjected the plaintiff to a burden, on account of a
discriminatory or retaliatory consideration.” (Id. at p. 1066.)
“[T]o read the ‘arising from’ requirement . . . as applying to
speech leading to an action or evidencing an illicit motive, would,
for a range of publicly beneficial claims, have significant impacts
the Legislature likely never intended.” (Id. at p. 1067.)
Thus, in an action in which the plaintiff has alleged
employment discrimination, harassment, or retaliation, “a claim
is not subject to a motion to strike simply because it contests an

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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.” (Park, supra,
2 Cal.5th at p. 1060.)
Park cited with approval Nam v. Regents of the University
of California (2016) 1 Cal.App.5th 1176 (Nam). In that case, an
anesthesiology resident alleged that her employer, a university
medical center, took a variety of inappropriate employment
actions against her in retaliation for plaintiff’s actions. The
plaintiff sued for retaliation, discrimination, sexual harassment,
wrongful termination, breach of contract, and violations of the
Business and Professions Code. (Nam, supra, 1 Cal.App.5th at p.
1184.) The medical center moved to strike under section 425.16,
arguing that the plaintiff’s causes of action arose from written
complaints made in connection with an official proceeding. (Ibid.)
The Court of Appeal held that the trial court correctly
denied the motion. The court said, “Defendant . . . insists that all
of its conduct involving plaintiff was protected and plaintiff's
lawsuit was designed to chill the exercise of its right to petition,
that is, its right to handle the complaints” relating to the
plaintiff’s employment performance. (Nam, supra, 1 Cal.App.5th
at p. 1187.) The plaintiff argued that the defendant’s actions
constituted harassment and retaliation, and the defendant
argued that “motive is irrelevant in assessing the merits of an
anti-SLAPP motion to strike.” (Ibid.)
The court disagreed, saying that to adopt the defendant’s
argument would be to allow the anti-SLAPP law to undermine all

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harassment and retaliation claims. “Any employer that initiates
an investigation of an employee, whether for lawful or unlawful
motives, would be at liberty to claim that its conduct was
protected and thereby shift the burden of proof to the employee,
who, without the benefit of discovery and with the threat of
attorney fees looming, would be obligated to demonstrate the
likelihood of prevailing on the merits. Such a result is at odds
with the purpose of the anti-SLAPP law, which was designed to
ferret out meritless lawsuits intended to quell the free exercise of
First Amendment rights, not to burden victims of discrimination
and retaliation with an earlier and heavier burden of proof than
other civil litigants and dissuade the exercise of their right to
petition for fear of an onerous attorney fee award.” (Nam, supra,
1 Cal.App.5th at p. 1189.) The court concluded, “[T]he anti-
SLAPP statute was not intended to allow an employer to use a
protected activity as the means to discriminate or retaliate and
thereafter capitalize on the subterfuge by bringing an anti-
SLAPP motion to strike the complaint. In that case, the conduct
giving rise to the claim is discrimination and does not arise from
the exercise of free speech or petition.” (Id. at p. 1190-1191.)
Similarly, in Martin v. Inland Empire Utilities Agency
(2011) 198 Cal.App.4th 611, the plaintiff alleged that his
employer, a municipal water district, took adverse employment
actions against him due to race and age discrimination, and in
retaliation for the plaintiff’s actions. The defendants filed an
anti-SLAPP motion, arguing that “all plaintiff’s causes of action
were barred as privileged communications made in the proper
discharge of their official duties.” (Martin, supra, 198
Cal.App.4th at p. 618.) The trial court denied the motion, and
the Court of Appeal affirmed. The court said, “[T]he pleadings

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establish that the gravamen of plaintiff’s action against
defendants was one of racial and retaliatory discrimination, not
an attack on [a supervisor] or the board for their evaluations of
plaintiff’s performance as an employee.” (Id. at p. 625.) The
court added, “it is clear that his action does not arise from any
purported exercise of defendants’ privileged governmental acts,
which would be covered by the statute.” (Ibid.)
In Department of Fair Employment & Housing v. 1105 Alta
Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 (Alta
Loma), a landlord wanted to take its rental units off the market,
and the landlord served a notice of its intentions to the tenants.
A disabled tenant sought an extension of time to vacate the
apartment. The landlord challenged the tenant’s disability
diagnosis, and ultimately filed an unlawful detainer proceeding.
The Department of Fair Employment and Housing (DFEH) sued
the landlord for discrimination and other violations relating to
the disabled tenant. (Alta Loma, supra, 154 Cal.App.4th at p.
1280.) The landlord defendant moved to strike the complaint
under section 425.16, arguing that the lawsuit arose from
protected activity “in connection with official proceedings in
removing its residential units from the rental market and
thereafter in filing unlawful detainer actions.” (Ibid.) The trial
court denied the motion, and the Court of Appeal affirmed.
The court assumed that the defendant’s communication
with the tenant and subsequent filing of the unlawful detainer
action constituted protected petitioning or free speech activity.
(Alta Loma, supra, 154 Cal.App.4th at p. 1283.) But such a
finding was not sufficient to meet the first prong of the anti-
SLAPP test. “[T]he pleadings and the affidavits submitted by the
parties establish the gravamen of DFEH’s action against Alta

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Loma was one for disability discrimination, and was not an
attack on any act Alta Loma committed during the rental
property removal process or during the eviction process itself.”
(Id. at p. 1284.) The court added, “[I]f this kind of suit could be
considered a SLAPP, then landlords and owners, if not Alta
Loma, could discriminate during the removal process with
impunity knowing any subsequent suit for disability
discrimination would be subject to a motion to strike and
dismissal. We are confident the Legislature did not intend for
section 425.16 to be applied in this manner.” (Id. at p. 1288.)
C. Application to this case
Esquith alleged that he was a vocal critic of LAUSD
practices, and defendants retaliated against him as a result by
opening a baseless investigation intended to harm him. Esquith
alleged that even after the California Commission on Teacher
Credentialing found no evidence of misconduct and closed its
investigation, defendants “continued on a baseless and
meandering investigation designed to cook up negative facts and
smear Mr. Esquith’s reputation in the community.” He alleged
that the press release about the investigation “was designed to
retaliate against Mr. Esquith for consistently and publicly
opposing many of LAUSD’s wasteful policies and practices.” He
alleged that allegations of sexual abuse were created by
defendants, disseminated to the media by defendants, and then
“investigated”—all in retaliation after Esquith filed a government
claim for damages. Specific to his age discrimination cause of
action, Esquith alleged that defendants engage in a pattern and
practice of retaliating against teachers who are nearing
retirement age.

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The gravamen of Esquith’s complaint, therefore, is
discrimination, harassment, and retaliation. The investigation,
the press releases, and certain adverse employment actions are,
according to the complaint, evidence of the alleged discrimination,
harassment, and retaliation. (See Graffiti Protective Coatings,
Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1214-
1215 [“In deciding whether an action is a SLAPP, the trial court
should distinguish between (1) speech or petitioning activity that
is mere evidence related to liability and (2) liability that is based
on speech or petitioning activity.”]) Discrimination, harassment,
and retaliation are not protected activities, and as Park, Nam,
and the other cases discussed above make clear, an employer who
has allegedly engaged in discrimination, harassment, and
retaliation may not use the anti-SLAPP law to strike a complaint
when the plaintiff’s causes of action are based on such
allegations.
Defendants argue that Park does not support Esquith’s
position, because an investigation into employee wrongdoing is
protected activity.3 They argue that “according to the complaint,
the injury or wrong Plaintiff is complaining of is the
investigation. Putting it in terms of the elements for
discrimination and retaliation, the investigation is the ‘adverse
employment action’ upon which those claims rest.” (Italics in
original.) Because an investigation is protected activity,
3 Park was decided after the parties completed briefing in
this case, and we requested additional briefing to allow the
parties to address how the holding of Park affects the issues in
this case.

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defendants conclude, the first prong of the anti-SLAPP test is
met.4
In support of their position, defendants cite several cases
holding that an employment-related investigation constitutes an
official proceeding under section 425.16, subdivision (e)(2), and is
therefore protected activity. Some of these cases clearly do not
involve anti-SLAPP motions relating to claims of discrimination,
harassment, or retaliation. Defendants cite Vargas v. City of
Salinas (2009) 46 Cal.4th 1, for example, in which the plaintiffs
challenged a city’s actions relating to a local ballot measure.
Defendants also rely on Kibler v. Northern Inyo County Local
Hosp. Dist. (2006) 39 Cal.4th 192 (Kibler), which arose from a
lawsuit by a hospital staff physician relating to a disciplinary
recommendation by the hospital’s peer review committee; the
Court opinion makes no mention of any allegations of
4 It is possible that certain communications alleged in the
complaint could be considered sufficiently separate from the
allegedly discriminatory and retaliatory conduct that they
constitute protected activity, and are therefore subject to a
motion to strike. (See, e.g., Baral v. Schnitt (2016) 1 Cal.5th 376,
393 [where a challenged cause of action includes allegations
relating to both protected and unprotected activity, the protected
activity may be subject to anti-SLAPP protections].) Here,
however, defendants have not asserted such an argument,
instead asking the trial court only to strike the complaint in its
entirety, and asserting on appeal that each cause of action
constitutes protected activity because it arises from LAUSD’s
investigation. We therefore do not consider the alleged instances
of communication separately to determine whether they
individually constitute protected activity.

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discrimination, harassment, or retaliation.5 In Gallanis-Politis v.
Medina (2007) 152 Cal.App.4th 600, the Court of Appeal found
that an employment investigation was protected activity. (Id. at
p. 610-611.) However, that investigation was conducted in
response to a discovery request while litigation was already
pending, and it was intended to generate information for the
pending lawsuit. (Id. at pp. 611-612.) The court found that
because the investigation was done “in the course of preparing
responses to [the plaintiff’s] discovery requests,” it constituted
protected activity. (Id. at p. 612.) Because these cases arose from
circumstances different than those in the instant case, they have
limited applicability in determining whether the first prong of the
anti-SLAPP test has been met here.
Two other cases defendants cite include defamation and
retaliation claims, but both were decided before Park and neither
case makes clear whether the courts granted anti-SLAPP
motions on causes of action arising from allegedly discriminatory
or retaliatory actions. In the first case, Hansen v. California
Dept. of Corrections and Rehabilitation (2008) 171 Cal.App.4th
1537 (Hansen), the plaintiff/employee alleged that his employer
engaged in retaliation by continuing to pursue an investigation
into potential job-related wrongdoing after he retired. He alleged
that certain employees conspired to defame him, and that
5 In Park, the Supreme Court emphasized that the issue
decided in Kibler was very narrow: “The trial court in Kibler
found, and we accepted for purposes of review, that these tort
claims arose from statements made in connection with a hospital
peer review proceeding. The only issue before us was whether,
assuming this to be so, the peer review proceeding was an
‘“official proceeding”’ within the meaning of the anti-SLAPP
statute.” (Park, supra, 2 Cal.5th at p. 1069.)

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employees lied to get a warrant to search his house. The plaintiff
filed a complaint alleging “causes of action for intentional
infliction of emotional distress and violation of his constitutional
rights.” (Hansen, supra, 171 Cal.App.4th at p. 1541.) The Court
of Appeal noted that “Hansen’s complaint is based on statements
and writings CDCR personnel made during the internal
investigation and in securing the search warrant.” (Id. at p. 1544
[italics added].) Because the investigation was an official
proceeding, the court held, “the objected-to statements and
writings, i.e., the allegedly false reports of criminal activity, were
made in connection with an issue under consideration by an
authorized official proceeding and thus constitute protected
activity under . . . subdivision (e)(2).” (Id. at p. 1544.) It is not
clear whether the plaintiff in Hansen alleged, as Esquith does
here, that the investigation itself constituted retaliation, or
whether his causes of action arose from certain statements made
in the scope of the investigation, which led to the issuance and
service of a search warrant on his house. Moreover, unlike in
Park, the Hansen plaintiff did not appear to allege that his
employer engaged in any discriminatory or retaliatory
employment action, because the alleged conspiracy to defame him
arose only after he retired.
The second case is Miller, supra, 169 Cal.App.4th 1373,
which included allegations of discrimination, harassment, and
retaliation. However, those causes of action were not addressed
by the defendant’s anti-SLAPP motion. Instead, the Court of
Appeal held that due to previous proceedings, “Miller was
collaterally estopped from arguing in his complaint that his
termination was wrongful.” (Miller, supra, 169 Cal.App.4th at p.
1383.) Only the plaintiff’s causes of action for defamation and

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intentional infliction of emotional distress were subject to the
motion to strike. The court said, “Here, the thrust of Miller’s
defamation and intentional infliction of emotional distress claims
is the City’s investigation into Miller’s conduct in connection with
his public employment and its determination and report that he
had engaged in misconduct on the job constituting a conflict of
interest as well as theft of City property. On this record, the first
prong of section 425.16 is satisfied.” (Id. at p. 1383.) The case
does not make clear whether the plaintiff alleged that the
investigation itself was discriminatory, harassing, or retaliatory,
thus limiting any applicability to this case.
Esquith argues that the reasoning of Park applies here
because “Park makes clear that Appellants cannot attempt to
shield themselves from liability by using a bogus ‘investigation’
into [Esquith] as a pretext for retaliatory and discriminatory
conduct.” Esquith also argues that the analysis in Park supports
the trial court’s ruling because the conduct at issue—conversion
of Esquith’s property, age discrimination, and false statements
about Esquith’s character—was not “purported ‘speech activity’
tenuously connected to the LAUSD’s bogus investigation.”
We agree that Esquith’s claims do not arise from a
protected employment investigation. Rather, Esquith has alleged
that defendants harassed him, discriminated against him, and
retaliated against him, and to accomplish these ends they
engaged in a baseless investigation and took adverse employment
actions against Esquith. Because Esquith has alleged that the
investigation and related actions were a pretext for defendants’
retaliation and discrimination, the investigation is not protected
activity and it cannot provide a basis for defendants’ anti-SLAPP
motion.

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Defendants therefore failed to meet their burden to show
that the first prong of the anti-SLAPP test had been met. As a
result of this finding, we do not address whether Esquith
satisfied the second prong of the anti-SLAPP test by
demonstrating a probability of prevailing on his claims. (See
Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 582.) The trial
court correctly denied defendants’ motion.
DISPOSITION
The court’s denial of defendants’ special motion to strike is
affirmed. Esquith is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.

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