MILLER, Acting P.J.
Plaintiff and appellant Belen Cordero (Cordero) sued defendants and respondents City of Adelanto (the City), Richard Kerr (Kerr), Jermaine Wright (Wright), and John Woodard, Jr. (Woodard) for (1) hostile work environment; (2) slander; and (3) violating her right of due process. The City, Kerr, Wright, and Woodard (collectively, Defendants) filed an anti-SLAPP motion. (Code Civ. Proc., § 425.16; hereinafter, § 425.16.) The trial court granted the motion. Cordero contends the trial court erred by granting the motion. We reverse.
The facts in this subsection are taken from Cordero's second amended complaint (SAC). Kerr was mayor of the City. Wright and Woodard were members of the city council. The City is a charter city. The City's charter grants the city manager sole authority over employees of the City. The City's mayor and councilmembers do not have authority over employees.
Cordero was hired by the City in April 1999. Cordero's first position with the City was as a billing clerk. During Cordero's career with the City, she received excellent performance evaluations.
Cordero had a dispute with Kerr. When Kerr was campaigning to be elected mayor, "he made it known that he sought to fire [Cordero]." Kerr became mayor on January 1, 2015. In January 2015, Kerr and Wright disseminated the rumor that Cordero was "sleeping with the vendors who beautified Adelanto City Hall." Kerr and Wright nicknamed Cordero "the `golden pussy.' "When Cordero attended public meetings, "Kerr[] would have a person take the podium just to say that Mayor Rich Richard [sic] Kerr never called [Cordero] the golden pussy to further harass and humiliate [Cordero]." (All caps. omitted.)
Jim Hart (Hart) was the city manager for the City. Beginning in February 2015 and continuing through July 2015, Kerr sent e-mails to the city attorney, councilmembers, and Hart demanding Cordero's employment be terminated. The city attorney and Hart refused Kerr's request and advised him that he was violating the City's charter and the Brown Act. Kerr met with Hart to urge that Cordero be fired. Kerr met with Wright and Woodard to discuss methods for having Cordero fired.
In February 2015, Cordero learned of Kerr's attempts to have her employment terminated. Hart assured Cordero that Cordero would not be fired by Kerr. Also in February 2015, Kerr, Wright, and Woodard, who constituted a majority of the city council, voted to terminate Hart's contract. The council hired Tom Thornton (Thornton) as the city manager. Kerr, Wright, and Woodard told Thornton and the city attorney to fire Cordero, but Thornton and the city attorney refused citing the City's charter. In May 2015, there were several instances in which Cordero's name appeared on closed session agendas. Cordero was not personally notified of her name being on the agendas and was not told the reason for her name being on the agendas.
In August 2015, Thornton resigned as city manager. Cindy Herrera (Herrera) was given the job of city manager. In February 2016, Kerr and Wright spoke to a person from another city or a different entity within the City in an attempt to have Cordero's employment transferred. In July 2016, Cordero was given a non-union supervisory position, and Kerr apologized to Cordero "for all of the prior harassment."
In September 2016, Cordero filed a Fair Employment and Housing (FEHA) complaint. In the FEHA complaint, Cordero alleged she was a whistleblower for making complaints about violations of the Brown Act. Cordero asserted she had been targeted for firing, and that she had been fired from her union position and placed in a non-union position. Cordero asserted Herrera reported to Kerr on Cordero's activities, but did not report on other employees. Cordero contended the work environment was hostile.
In October 2016, Cordero's supervisees were removed from her oversight, her caseload was reduced, and she had to inform Herrera of all her decisions—placing Cordero under constant supervision. On December 13, the city council placed the item "Budget Briefing" on its agenda. On December 14, an open meeting was held on the Budget Briefing topic. At the meeting, Wright said the City would be making cuts to the budget that had been approved through July 2017. "Kerr turned and asked if they were going to do this and . . . Wright said `oh ya.' The council announced that . . . Cordero and others were being essentially cut from the budget." The city council violated the City's charter by deciding which employees would be fired.
Cordero's first cause of action concerned a hostile work environment, in violation of FEHA, and was alleged against the City, Kerr, and Wright. In the first cause of action, Cordero alleged she was subjected to repeated attempts to have her employment terminated, and statements by Kerr and Wright that they would have her fired. Further, Cordero was referred to as "the `golden pussy'" when Kerr and Wright spoke to Cordero's coworkers. Kerr and Wright told others that Cordero was "sleeping with vendors in order to have work performed for the City of Adelanto." Cordero also complained of being constantly supervised, the attempt to have her employment transferred, the closed session meetings about her without any notice being provided, as well as false and derogatory comments that were made concerning her work ethic. Cordero asserted she suffered mental and emotional distress as a result of the foregoing actions.
Cordero's second cause of action was against Kerr and Wright and concerned slander. Cordero complained of being referred to as "the `golden pussy'" and the rumor that she "was sleeping with vendors for free work to be done for the City." Cordero alleged she suffered mental and emotional distress as a result of the slander.
Cordero's third and fourth causes of action were against all defendants and alleged a violation of due process under California Constitution Article I, section 7. In the third cause of action, Cordero alleged she was entitled to notice of the closed session meetings that were held from October through December 2016 concerning her employment, but that no notice had been given to her. Further, Cordero asserted the plan to terminate her employment was discussed in an open session meeting on December 14, 2016, but the subject of her termination was not on the agenda and she was not given notice of the meeting. Cordero alleged that her employment was terminated on January 3, 2017.
In the fourth cause of action, Cordero alleged that she "was entitled to have a hearing regarding her departure from the City after 18 years o[f] being employed. [Cordero] was given no notice of the termination nor did she receive a hearing regarding her termination in violation of the due process clause of the California Constitution Article I § 7."
Defendants filed an anti-SLAPP motion. (§ 425.16.) Defendants contended Cordero's harassment cause of action arose from protected activity because the gravamen of her claim was the termination of her employment, which arose "through the City Council's general plan to balance the City's budget in light of a Fiscal Emergency, [and] the layoff and related deliberation concern a matter of public interest."
Defendants asserted Cordero's slander cause of action arose from protected activity because the comments were (1) made at legislative or official proceedings, or (2) were made in connection with an issue being reviewed in an official proceeding. Defendants contended Cordero's due process claims arose from protected activity because the alleged acts were related to an issue of public interest, in particular the City's fiscal emergency, and the acts concerned discussions and actions by councilmembers. Defendants asserted, "[Cordero's] lawsuit is a direct attack on the city council's decision to deliberate about, discuss and recommend that her position be abolished due to the budgetary issues and the lack of necessity for her position—an issue unambiguously within the scope of the city council's authority."
Defendants asserted Cordero was unlikely to prevail on her harassment cause of action because the harassment was privileged due to it having occurred in a legislative or official proceeding. (Civ. Code, § 47.) Next, Defendants asserted that Cordero failed to plea harassment with the required specificity. Defendants wrote, "Here, the only comments that arguably related to a protected category are [Cordero's] allegations that Defendants called her the `golden pussy' and made remarks about her sleeping with vendors in order to have work performed for the City." Additionally, Defendants contended they were immune from liability for harassment because they are public officials and their employment decisions are protected. (Gov. Code, § 810.)
Defendants contended Cordero was unlikely to prevail on her slander cause of action because the slander was privileged due to it having occurred in a legislative or official proceeding. (Civ. Code, § 47.) Next, Defendants asserted the slander cause of action was time-barred. Defendants contended Cordero failed to file her claim within six months of the alleged statements. Additionally, Defendants contended Cordero failed to plea slander with the required specificity. Defendants faulted Cordero for not specifying "who made which comments, where they made them, [and] when they were made." Further, Defendants contended they were immune from liability for slander because they were public officials and their employment decisions are protected. (Gov. Code, § 810.)
Defendants asserted Cordero was unlikely to prevail on her due process causes of action because the constitution "affords no independent basis for relief." To the extent Cordero's due process causes of action could be understood as alleging Brown Act violations, Defendants asserted (1) the claims were time-barred; (2) a complaint for damages is not the proper method for seeking redress for an alleged Brown Act violation; and (3) the City substantially complied with the Brown Act.
Cordero opposed Defendants' anti-SLAPP motion. Cordero asserted that referring to her as "the golden pussy" and disseminating a rumor that she engaged in sexual activities with City vendors in exchange for free work for the City were not protected activities. Cordero contended the name-calling and rumors were not matters of public interest or public significance. Cordero asserted the mayor and councilmembers did not have authority over city employees, and therefore, any comments they made about Cordero were not made in their official capacities or made in furtherance of government business. Further, Cordero asserted she was not a public figure.
Cordero contended her lawsuit was not time-barred by the six-month statute of limitations applicable to suing governmental entities because Cordero sued Kerr and Wright as individuals. Cordero asserted Defendants were not immune from liability because (1) Defendants did not provide law reflecting they could defame a person; (2) it was not within Defendants' authority to terminate Cordero's employment; and (3) retaliatory actions do not fall within governmental immunity.
Cordero contended her harassment/hostile work environment cause of action was sufficiently specific because she alleged in the SAC that she was part of a protected class based upon her gender as a female, she was subject to harassment by daily being told that she would be fired, being called "the golden pussy," and being called a prostitute for sleeping with vendors in exchange for work on behalf of the City. Cordero asserted, "[T]he comments and conditions were created by the Defendants as Council Members of the City."
Cordero asserted her slander cause of action was pled with sufficient specificity because she alleged that Kerr and Wright called her "the golden pussy" and told others she prostituted herself with city vendors in exchange for services for the City. Cordero explained that if more details were needed as to who heard the statements, where the statements were said, and when they were said, then she would amend the complaint. Cordero contended Defendants were not protected by the legislative privilege because "[t]here is not on[e] iota of information in the SAC that the slanderous remarks made by the Defendants were made at any legislative proceeding."
Cordero contended her cause of action "under the Brown Act for Due Process" was not time-barred. Cordero contended the 135-day time limit did not apply to claims brought pursuant to Government Code section 54957, which is the statute upon which her causes of action relied. In regard to a complaint for damages not being the proper vehicle for an alleged Brown Act violation, Cordero asserted that rule did not apply to claims under Government Code section 54957.
The trial court held a hearing on Defendants' anti-SLAPP motion. The trial court's tentative ruling was to grant the motion. Cordero contended the gravamen of her complaint was that (1) she suffered a hostile work environment due to name-calling and rumors; (2) when she was terminated, she was not given a Skelly
The trial court granted Defendants' anti-SLAPP motion. In its ruling, the trial court concluded that the allegations in the SAC arise from protected activity. The trial court did not provide reasoning to support its conclusion. The trial court found the hostile work environment cause of action was barred by the legislative privilege. (Civ. Code, § 47.) The trial court found the slander cause of action was time-barred. The trial court found the due process causes of action were barred by the legislative privilege. (Civ. Code, § 47.)
Cordero contends the trial court erred by granting the anti-SLAPP motion.
The anti-SLAPP statute is designed to "encourage continued participation in matters of public significance" by stopping lawsuits that would otherwise chill a person's public participation due to abuse of the judicial process. (§ 425.16, subd. (a).) There are two steps to determining if a lawsuit is designed to curb a defendant's participation in matters of public significance.
The first step is examining the causes of action to determine if they arise from any act in furtherance of the defendants' "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).) The second step is determining whether the plaintiff has a probability of prevailing on her claims. (§ 425.16, subd. (b).) If a cause of action arises from an act in furtherance of the defendants' right of petition or free speech and the plaintiff does not have a probability of prevailing, then the cause of action will be stricken. (§ 425.16, subd. (b).) We apply the de novo standard of review. (Park v. Board of Trustees of California State University System (2017) 2 Cal.5th 1057, 1067.)
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: (1) any . . . oral statement . . . made before a legislative . . . proceeding, or any other official proceeding authorized by law, (2) any . . . oral statement . . . made in connection with an issue under consideration or review by a legislative . . . body, or any other official proceeding authorized by law, (3) any . . . oral statement . . . 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).)
"In deciding whether the initial `arising from' requirement is met, a court considers `the pleadings, and supporting and opposing affidavits, stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)" (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) "`The mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] . . . In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.'" (In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)
Cordero's first cause of action is brought under FEHA and alleges she suffered retaliation and a hostile work environment.
"Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (the Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA." (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) In order for the plaintiff to have exhausted his/her administrative remedies, the issues raised in the court-filed complaint cannot exceed the scope of the issues that were raised in the Department-filed complaint. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153-154.)
"`"The administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the [Department] charge, any [Department] investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination `like and reasonably related to' the allegations of the [Department] charge."'" (Wills v. Superior Court, supra, 195 Cal.App.4th at pp. 154-155.)
Cordero's Department-filed complaint is attached to her SAC. In the Department-filed complaint, Cordero complained of "retaliation for whistle blowing." Cordero asserted, "These four councilmen targe[ted] me for termination and two others . . . who also made complaints of Charter and Brown Act violations. They had the three of us put on the February 25th agenda for public employee dismissal, with no notice to any of us. The four councilmen took it upon themselves to interview us for our current position. . . . [¶] The City continues to harass me with allegations on a regular basis. The City has gone as far as to trying to give me a position with another city on or about March 2016. The city then terminated me a couple months ago and placed me as a city employee, non union. . . . The City Manager reports directly to the Mayor in regards to my activities and no other personnel is under scrutiny."
Notably, Cordero's Department-filed complaint does not include allegations of sexual harassment, e.g., that Cordero was nicknamed "the golden pussy" or rumored to be a prostitute for the City. Accordingly, when analyzing the hostile work environment cause of action in the SAC, we do not consider the sexual harassment allegations. Instead, we focus on the repeated attempts to have Cordero's employment terminated in retaliation for her alleging violations of the Brown Act and the City's charter, because those allegations are included in the Department-filed complaint.
FEHA provides, "[I]t is an unlawful employment practice . . . [f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (Gov. Code, § 12940, subd. (h), italics added.) Cordero has not alleged that she was retaliated against due to her opposition to discriminatory practices, which it prohibited under FEHA. (§ 12940, subd. (a).) Rather, she has asserted that she was retaliated against for opposing violations of the Brown Act and the City's charter. We infer that Cordero intended to allege a whistleblower/retaliation claim under the Labor Code (Labor Code, § 1102.5, subd. (b))—not under FEHA.
An employee is not required to exhaust his/her administrative remedies with the Labor Commissioner prior to bringing a civil action under Labor Code section 1102.5. (Lab. Code, §§ 244, subd. (a), 98.7, subd. (g).) However, an employee must exhaust any internal administrative remedies, i.e., procedures imposed by the City. (Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551, 556.) In analyzing the anti-SLAPP issue of protected activity, we are not concerned with whether Cordero has exhausted any applicable administrative remedies. Accordingly, we do not delve further into the issues of whether there are internal remedies and whether Cordero exhausted them.
We interpret Cordero's first cause of action as alleging a violation of Labor Code section 1102.5, subdivision (b). (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 585 [complaints are broadly construed].) Labor Code section 1102.5, subdivision (b), provides, "An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties."
Thus, in sum, the basis of Cordero's first cause of action is that she was retaliated against for alerting others to alleged violations of the Brown Act and the City charter. The retaliation against Cordero allegedly consisted of repeated discussions about terminating her employment, attempting to have Cordero's employment transferred, and closely supervising Cordero.
In regard to discussions about terminating Cordero's employment, she alleges in her first cause of action, "Defendants, Richard Kerr, Jermaine Wright, were constantly telling City employees that they were going to get [Cordero] fired." (All caps. omitted.) In the general factual allegations section of Cordero's SAC she alleges that Kerr and Wright spoke to the city managers and city attorney about having her fired. Thus, a reasonable inference is that the "City employees" to whom Kerr and Wright were speaking were the city managers and the city attorney.
Cordero also complains that she was fired from her union job and given a non-union job, Defendants attempted to have her employment transferred to another city, and her employment was ultimately terminated. Cordero is not complaining of budget discussions at the city council meeting, she is complaining of acts that constituted harassment in the form of repeatedly seeking to terminate Cordero's employment in retaliation for her whistleblowing activities.
Our Supreme Court has explained the difference between a lawsuit against public officials that arises from protected speech, and a lawsuit against public officials that does not arise from protected speech: "[I]n Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176, the plaintiff, a University of California Davis medical resident, sued for sexual harassment, discrimination, and wrongful termination. The defendant Regents' anti-SLAPP motion contended the suit arose from communicated complaints about the plaintiff's performance, written warnings it issued her, an investigation it conducted, and the written notice to plaintiff of her termination. Not so; the basis for liability was instead the Regents' alleged retaliatory conduct, including `"subjecting [plaintiff] to increased and disparate scrutiny, soliciting complaints about her from others, removing [her] from the workplace, refusing to permit her to return, refusing to give her credit towards the completion of her residency, failing to honor promises made regarding her treatment, and ultimately terminating her on February 2, 2012."' [Citation.] Nam illustrates that while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What 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." (Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1066.)
The instant allegations are similar to those in Nam. Cordero is not complaining that Defendants spoke about the City's budget. Rather, she is complaining that she was subjected to increased and disparate scrutiny, that she was fired from her union job and given a non-union job, and that discussions were repeatedly held with the city managers and city attorney about terminating Cordero's employment for the purpose of retaliating against her. Thus, liability is not based upon Defendants' free speech or petitioning; it is based upon their alleged retaliation against Cordero in creating a hostile work environment. In sum, the first cause of action does not arise from protected activity.
Defendants contend that, because Cordero was a public employee, her job performance and employment status "necessarily are a matter of public interest." (§ 425.16, subd. (e)(3)&(4).) As explained ante, Defendants' alleged conduct does not arise from the exercise of their free speech or petitioning rights. Therefore, assuming Cordero's employment status is a matter of public interest, the alleged conduct at issue is not a protected statement or conduct in furtherance of the constitutional rights of free speech or petition made in connection with an issue of public interest. (§ 425.16, subd. (e)(3)&(4).)
Cordero's second cause of action is for slander. "Slander is a false and unprivileged publication, orally uttered . . . which: [¶] . . . [¶] [i]mputes to [her] impotence or a want of chastity." (Civ. Code, § 46.)
Cordero's slander cause of action is based upon Kerr and Wright referring to Cordero as "the golden pussy" and disseminating the rumor that she was a prostitute for the City. In Cordero's SAC, she does not identify when (e.g., during work hours), where (e.g., at work), or to whom (e.g., to coworkers) Kerr and Wright allegedly made these sexual comments. One instance that Cordero describes concerning the comments involves public meetings and the comments being made by people other than Kerr and Wright. Cordero alleges, "From January 2015 even til present [Cordero] would go to city public meetings and Defendant, Richard Kerr, would have a person take the podium just to say that Mayor Rich Richard [sic] Kerr never called [Cordero] the golden pussy to further harass and humiliate [Cordero]." (All caps. omitted.)
Despite the lack of clarity in Cordero's SAC, certain inferences can be made. Cordero's allegations concern her work environment. Thus, it can be inferred that Kerr and Wright allegedly made the comments to Cordero's coworkers or to other people in the vicinity of Cordero while she was working. (Gov. Code, § 12940, subd. (j)(1).)
Cordero worked as a billing clerk and then became a supervisor in July 2016. Cordero asserts the allegedly slanderous comments were made as early as January 2015. A reasonable inference is that a billing clerk did not perform her job duties at a legislative proceeding. Cordero does not assert that Kerr or Wright made lewd comments at city council meetings. Rather, she contends Kerr prompted a person/people, prior to public meetings, to make comments that referenced Cordero. Accordingly, there is nothing in the SAC indicating that Kerr and Wright made the allegedly slanderous comments at a legislative proceeding. (§ 425.16, subd. (e)(1).)
There is nothing indicating that Cordero's sexual activities were under consideration by the city council. Therefore, the comments were not "made in connection with an issue under consideration" by a legislative body. (§ 425.16, subd. (e)(2).)
"`Section 425.16 does not define "an issue of public interest." Nevertheless, the statute requires the issue to include attributes that make it one of public, rather than merely private, interest. . . . For example, "public interest" is not mere curiosity. Further, the matter should be something of concern to a substantial number of people. Accordingly, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest.'" (Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 131.)
There is nothing indicating that a substantial number of people were interested in Cordero's alleged sexual activities. For example, there is no indication that Cordero was involved in any type of corruption case for allegedly working as a prostitute for the City. Therefore, because the comments did not concern a larger issue that would be of general interest to the citizens of the City, it has not been shown that the comments (1) were "made in a place open to the public or a public forum in connection with an issue of public interest" (§ 425.16, subd. (e)(3)); or (2) were 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)(4)). Accordingly, the cause of action for slander does not arise from protected activity.
Defendants contend the comments concern an issue of public interest because they address how the City acquired services from vendors and the amount of money, if any, paid for the vendors' services. Defendants focus on the portion of the comments that relate to obtaining services from vendors. However, the sexual comments were not limited to statements about the vendors; they also involved Cordero. Referring to Cordero as "the golden pussy," provided little information about vendor payments, such that the public could have an informed discussion regarding a budget for city services. Because Defendants are focusing on only a portion of the statements, rather than the statements as a whole, we are not persuaded that the alleged comments concerned a matter of public interest. In sum, the slander cause of action does not arise from a protected activity.
Cordero's third cause of action alleges violations of the Brown Act, specifically Government Code section 54957, subdivision (b).
Government Code section 54957, subdivision (a), permits the legislative body of a local agency to have closed session meetings on matters that pose a threat to the public, such as a threat to the security of the water supply. Government Code section 54957, subdivision (b)(1), provides, "Subject to paragraph (2), this chapter shall not be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session."
Government Code section 54957, subdivision (b)(2), provides, "As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void."
The gravamen of Cordero's third cause of action is that she was not given the required written notice, which needed to be personally delivered to her or mailed to her at least 24 hours before the closed sessions. (Gov. Code, § 54957, subd. (b)(2).) Thus, Cordero's third cause of action concerns an omission, in particular, the failure to provide her with written notice of the closed sessions.
The failure to provide notice is not a written or oral statement made before a legislative body because no statement was made; the cause of action concerns the failure to provide a written statement. (§ 425.16, subd. (e)(1).) The failure to provide notice is not a written or oral statement made in connection with an issue under consideration by a legislative body because, again, no statement was made. (§ 425.16, subd. (e)(2).)
The failure to provide notice is not a written or oral statement made in a place open to the public or in a public forum in connection with an issue of public interest, because the allegation is that no statement was made. (§ 425.16, subd. (e)(3).) In failing to provide notice of Cordero's rights, Defendants limited her ability to choose an open session for the discussion of issues related to her employment. By limiting Cordero's ability to select an open session, Defendants were not promoting free speech and the right to petition. Therefore, the failure to provide notice is not conduct in furtherance of the exercise of the constitutional right to petition or the constitutional right of free speech. (§ 425.16, subd. (e)(4).) In sum, the third cause of action does not arise from protected activity.
Defendants contend the failure to provide Cordero with the required notice is a protected activity because the failure occurred as part of "[defendants'] official conduct as City representatives and their decision-making processes in that capacity." In support of this assertion, defendants cite to Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1061, in which the appellate court agreed with the appellant's concession that the city council's "surveillance subcommittee reports, the Council's hearing, and subsequent resolution adopted by [the] Council" were statements made before a legislative body or acts taken in furtherance of the right of petition or free speech, and thus protected activities. (§ 425.16, subd. (e).)
Tichinin concerns affirmative acts and statements by a city council. In the instant case, Cordero has alleged an omission—a failure to provide written notice. Because defendants do not explain how an omission qualifies as a protected activity, under the statutory definitions of a protected activity (§ 425.16, subd. (e)), we find their argument to be unpersuasive.
In Cordero's fourth cause of action she alleged she was not given a Skelly hearing.
"[A] permanent or tenured public employee facing a termination for cause has a due process right to challenge the factual basis for the termination in a full evidentiary hearing at some point in the termination process. Furthermore, the governmental employer bears the burden of proof in the evidentiary hearing." (Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 949.) "What Skelly requires is unambiguous warning that matters have come to a head, coupled with an explicit notice to the employee that he or she now has the opportunity to engage the issue and present the reasons opposing [termination]. Moreover, the opportunity to respond must come after the notice of intention to dismiss." (Coleman v. Regents of University of California (1979) 93 Cal.App.3d 521, 525-526.)
Cordero alleges she "was given no notice of the termination nor did she receive a hearing regarding her termination." Similar to the third cause of action, Cordero has alleged a failure to provide notice, and she has further alleged a failure to provide a hearing. Thus, this cause of action also concerns an omission. As explained ante, an omission is not a written or oral statement. Further, the failure to provide notice and a hearing limits, rather than furthers, the rights of petition and free speech. As a result, the alleged failure to provide notice and a hearing do not arise from a protected activity. (§ 425.16, subd. (e).)
Because we have concluded Cordero's causes of action do not arise from protected activity, we do not address the issue of whether Cordero has a probability of prevailing on the merits of her claims.
The judgment is reversed. Appellant is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
