Verceles v. L. A. Unified Sch. Dist.

63 Cal.App.5th 776

278 Cal.Rptr.3d 246

Junnie VERCELES, Plaintiff and Appellant,

v.LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

B303182

Court of Appeal, Second District, Division 7, California.

Filed April 19, 2021

Wyatt Law and Andrew M. Wyatt, Woodland Hills, for Plaintiff and Appellant.

Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall, Los Angeles; and Anthony J. Bejarano, Assistant General Counsel, Los Angeles Unified School District, for Defendant and Respondent.

PERLUSS, P. J.

Junnie Verceles appeals the order granting the Los Angeles Unified School District's special motion to strike his complaint for discrimination and retaliation in violation of California's Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. ). Verceles contends the trial court erred in finding his causes of action arose from protected activity within the meaning of Code of Civil Procedure section 425.16, subdivision (e),¹ and he had failed to establish a probability of prevailing on the merits of his claims. Verceles also appeals the court's award of attorney fees to the District. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. Verceles's Complaint

Verceles, who is Filipino and was 46 years old when his complaint was filed in March 2019, had been employed by the District as a teacher since 1998. According to his complaint, on December 1, 2015 he was "removed from his school and placed on reassignment with the local district office ... due to an allegation of misconduct." Verceles was not told the specifics of the allegation, only that he had been accused of misconduct involving a student.² Verceles remained on paid suspension, which he calls "teacher jail," for more than three years, during which time he was told to stay home and report his hours to the District. He was not allowed to teach or pursue continuing education or professional development.

In November 2016, while the District's investigation of his alleged misconduct was ongoing, Verceles filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH). The DFEH case was closed on March 7, 2017.

On March 13, 2018 the District's Board of Education voted to terminate Verceles's employment. Verceles alleges the District's investigation preceding his termination was "neither prompt nor thorough. The investigator interviewed only 8 students out of a class of over 30. Had the investigator done a proper investigation, the truth would have been revealed that one of the students was pressuring others to lie about what happened."

Verceles alleges three causes of action for violation of FEHA: age discrimination, race and national origin discrimination and retaliation. The first cause of action, age discrimination, is based on disparate impact. Verceles alleges the District "has a continuing policy, pattern and practice of age discrimination against credentialed employees over the age of 40 with respect to performance evaluations, pay, promotions, and other terms and conditions of employment. [The District] has implemented these policies and practices despite knowing that they have a longstanding disparate impact on teachers over the age of 40. [The District] also retaliates against teachers over the age of 40 who complain about this discrimination. [¶] ... [The District's] reliance on the illegitimate ‘teacher jail’ to remove teachers, and in particular, Plaintiff, from their teaching assignments and have them sit at home, has an adverse impact on employees over the age of 40 ...."

The second cause of action, race and national origin discrimination, is also based on a disparate impact theory. The allegations repeated, almost verbatim, the allegations in the first cause of action, but stated the disparate impact of the District's policies was based on race and national origin.

The third cause of action, retaliation, alleged the District had terminated Verceles's employment as retaliation for his November 2016 complaint to DFEH.

2. The District's Special Motion To Strike

On June 4, 2019 the District moved to strike the complaint pursuant to section 425.16. The District argued each cause of action arose from acts in furtherance of its rights of petition and free speech within the meaning of section 425.16, specifically, the investigation into teacher misconduct. The District also argued Verceles could not establish a probability of prevailing on his claims.

In his opposition Verceles argued the wrongful acts upon which his complaint was based were discrimination and retaliation, which are not protected activity. The District's investigation was evidence of that discrimination and retaliation but not the gravamen of the complaint. In support of the merits of his claims, Verceles submitted the declaration of a financial analyst who had reviewed the District's data regarding teachers assigned to "teacher jail." The analyst found "a statistically significant bias against teachers aged 46 and over, when compared against the general teacher population in California" during an unspecified time period. While the graphs and tables attached to the analyst's declaration referred to the race and national origin statistics of teachers in the District and the state, the declaration itself did not contain any conclusions as to those statistics.

After hearing argument on the special motion to strike on June 26, 2019, the court granted the motion, finding Verceles's cause of action arose from "the investigation process which includes plaintiff's removal from the classroom .... The acts alleged to constitute the discrimination and retaliation are all part of the proceeding, from the initial investigation to plaintiff's termination." The court also found Verceles had failed to establish a probability of prevailing on his claims. First, the disparate impact claims were not supported by the statistical data provided because "[t]here is no evidence that the age and racial make-up of teachers statewide is reflective of the teachers in [the District]." Therefore, comparison between the two data sets is irrelevant. Second, the court found Verceles failed to state a timeline supporting any inference of a causal connection between his filing of a grievance and the alleged retaliatory act.

On October 14, 2019 the District moved for an award of attorney fees pursuant to section 425.16, subdivision (c)(1), which Verceles opposed. After a hearing on the motion at which neither Verceles nor his counsel appeared, the court granted the motion for fees, awarding the District $44,800, the full amount requested. Judgment was entered against Verceles on November 21, 2019.

Verceles filed a notice of appeal on December 19, 2019

DISCUSSION

1. Verceles's Appeal of the Section 425.16 Order Is Properly Before Us

The District contends Verceles's appeal of the order granting the section 425.16 motion is untimely and, even if timely, the notice of appeal does not adequately identify that order as being appealed.

As the District correctly points out, an order granting a special motion to strike is immediately appealable. (See §§ 425.16, subd. (i), 904.1, subd. (a)(13).) Pursuant to California Rules of Court, rule 8.104(a), Verceles had either 60 days from the date the superior court clerk or the District served him with a notice of entry or the file-stamped copy of the order or 180 days from the entry of the order to appeal the order. (See Cal. Rules of Court, rule 8.104(a).) Verceles's appeal was filed 177 days after entry of the order granting the special motion to strike.

Relying on the 60-day deadline, the District argues Verceles's appeal is untimely and we are without jurisdiction to hear it. However, the District has submitted no evidence a notice of entry or file-stamped order was served on Verceles. Accordingly, Verceles's notice of appeal, filed within 180 days of the entry of the order granting the special motion to strike, is timely.³

In the alternative the District argues Verceles's notice of appeal from the judgment does not encompass an appeal of the order granting the special motion. In the section of the notice indicating the type of judgment or order appealed from, Verceles's attorney checked the box for "Other" and wrote, "Judgment of dismissal after an order granting a special motion to strike complaint (anti-SLAPP) under Code of Civil Procedure section 425.16 ; order granting motion for attorney fees under Code of Civil Procedure section 425.16."

"[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." ( Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289 ; accord, K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 882, 257 Cal.Rptr.3d 850, 456 P.3d 988 ; Cal. Rules of Court, rule 8.100(a)(2).) Here, by identifying the order granting the special motion to strike in addition to the order on attorney fees, the notice of appeal made it reasonably clear Verceles intended to appeal both orders simultaneously. Further, there is no evidence the District was misled or prejudiced by the notice of appeal.

2. The Trial Court Erred by Granting the District's Special Motion To Strike

a. Section 425.16, the anti-SLAPP statute⁴

Section 425.16, subdivision (b)(1), provides, "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."

Pursuant to section 425.16, subdivision (e), an " ‘act in furtherance of a person's right of petition or free speech under the United States or California Constitution in...