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Case No. A141508
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT
--00000-
ANN MARIE GALLANT Plaintiff and Appellant
v.
CITY OF ALAMEDA, Defendant and Respondent.
AN APPEAL FROM A FINAL JUDGMENT OF THE ALAMEDA COUNTY SUPERIOR COURT
CASE NO. RG11590505 HONORABLE JOHN M. TRUE, III
HONORABLE MARSHALL WHITLEY
APPELLANT'S OPENING BRIEF
*DAN KATIBAH, SBN 293251 JEFF STONE, SBN 155190
STONE & GRAVES 11335 Gold Express Drive, Suite 145
Gold River, CA 95670 Telephone No. (916) 231-0321 Facsimile No. (916) 231-0335
E-mail: [email protected];[email protected]
ATTORNEYS FOR PLAINTIFF AND APPELLANT ANN MARIE GALLANT
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (California Rules of Court, Rule 8.208)
There is no person or entity, other than the Appellant, that has a
financial or other interest in the outcome of this appeal. (California Rules
of Court, Rule 8.208(e)(3).)
August 11,2014
BY:_U_\ _,~_,~ ___ _ Dan Katibah, SBN 293251 Attorney for Appellant ANN MARIE GALLANT
TABLE OF CONTENTS
Introduction - Nature Of Action ................................................................. 1
The Appellate Record Consists Of A Joint Appendix And A Reporter's Transcript.................................................................................................... 2
Statement Of Jurisdiction............................................................................ 3
Standard of Review ..................................................................................... 3
Summary Of Facts And Proceedings .......................................................... 4
A. The Lena Tam Investigation .......... ...... ............ ........ ................. 4
B. Repercussions And Gallant's Termination ................................ 8
C. Gallant Sues The City................................................................ 9
D. Current Appeal .......................................................................... 10
Argument..................................................................................................... 11
I. The Anti-SLAPP Statute Generally....................................................... 12
A. C.C.P. §425.16 - The Anti-SLAPP Statute's Relevant Portions 12
II. Gallant Unequivocally Demonstrated Through Admissible Evidence That Her Employment Was Terminated By The City................................. 13
A. The Language In Gallant's Employment Contract, In Addition To The Termination Letter Sent By Alameda Mayor Marie Gilmore, Clearly Demonstrate That Gallant Was Terminated On December 28, 2010 .............................................................................................................. 14
B. Section 2 Of Gallant's Contract, The Non-Renewal Portion, Did Not Apply To The City Council's December 28,2010 Vote ............... 17
C. That Gallant Did Not Apply For The Permanent City Manager Position Is Irrelevant In Determining Whether She Was Terminated ......... 19
1. Gallant Had No Administrative Remedy To Exhaust ......... 20
1
2. Assuming Arguendo The Applicability of the Administrative Remedies "Exhaustion" Doctrine, Applying For The Permanent City Manager Job Would Have Been Futile .............................. 22
3. Gallant's Termination As Interim City Manager Is Completely Unrelated To Her Decision Not To Apply For The Permanent City Manager Job ......................................................................................... 24
D. The December 28,2010 Vote Was An Act Of Termination Because It Ended Gallant's Employment Relationship With The City ....... 24
III. Section 2-2 Of The Charter Applied To Gallant's Employment As Interim City Manager And The City Violated This Provision When It Suspended And Terminated Her .................................................................. 25
A. Gallant Was The "Incumbent" City Manager Under Section 2-2 Because Section 5(B)(2) Of Her Contract Explicitly Appointed Her Pursuant To That Section Of The Charter .................................................. 26
B. Applying The Charter To Gallant's Interim City Manager Contract Does Not Conflict With The California Constitution ................. 30
IV. Gallant Introduced Sufficient Evidence To Prevail On Each And Every Cause Of Action Listed In The Complaint.. ............ ........ ................. 32
A. The City's Violation Of Labor Code Sections 1l02.5(b) & (c) 34
1. Sectionll02.5(b) ................................................................. 35
2. Section 1102.5(c) .................................................................. 39
B. Gallant's Declaratory Relief Claim ........................................... 40
C. Gallant's Breach Of Contract Claim.......................................... 41
Conclusion................................................................................................... 44
11
TABLE OF AUTHORITIES
STATE CASES
Abelleira v. District Court of Appeal (1941) 17 Ca1.2d280 ................................................................................ 20
Campbell v. Regents of University of California (2005) 35 Ca1.4th 311................................................................................. 20
Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 ........................................................................ 3
City of Dana Point v. California Coastal Commission (2013) 217 Cal.AppAth 170 ...................................................................... 22
Colores v. Board of Trustees (2003) 105 Cal.AppAth 1293..................................................................... 35
Domar Electric} Inc. v. City of Los Angeles (1994) 9 Ca1.4th 161 .................................................................................. 29
Edgerly v. City of Oakland 34,35,36, (2012) 211 Cal.AppAth 1191..................................................................... 37,39
Equilon Enterprises v. Consumer Causes} Inc. (2002) 29 Ca1.4th 53 ......................................................... ......................... 3
Founding Members of the Newport Beach Country Club v. Newport Beach Country Club} Inc. (2003) 109 Cal.AppAth 944 ...................................................................... 15
Gardenhire v. Housing Authority (2000) 85 Cal.AppAth 234 ........................................................................ 37,38
George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.AppAth 1475 .................................................................... 37
Green v. Ralee Engineering Co. (1998) 19 Ca1.4th 66 .................................................................................. 36
Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.AppAth 1537 .................................................................... 34,35
111
Johnson v. City of Loma Linda (2000) 24 Ca1.4th 61 ....................... ..................... ...................................... 20
Kyle v. Carmon (1999) 71 Cal.AppAth 901, 907 ................................................................ 3
Mc Veigh v. Recology San Francisco (2013) 213 Cal.AppAth, 443 ..................................................................... 36
Mokler v. County of Orange (2007) 157 Cal.AppAth 121 ...................................................................... 37
Navellier v. Sletten (2002) 29 Ca1.4th 82 .................................................................................. 33
Nesson v. Northern Inyo County Local Hosp. Dist. (2012) 204 Cal.AppAth 65 '" ............. ...... ........................ ............ ........ ..... 34
Novartis Vaccines & Diagnostics} Inc. v. Stop Huntingdon Animal Cruelty USA} Inc. (2006) 143 Cal.AppAth 1284 .................................................................... 33
Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.AppAth 1378 ................................................................... 37,39
People ex reI. Lungren v. Superior Court (1996) 14 Ca1.4th 294 ............................................................................... 35,36
Ross v. Kish (2006) 145 Cal.AppAth 188 ............. ........ ...... ...... ....... ............................. 34
Schifando v. City of Los Angeles (2003) 31 Ca1.4th 1074 ................... .................... ..................... .................. 20
Soukup v. Law Offices of Herbert Haftf (2006) 39 Ca1.4th 260 ................................................................................ 34
Stokes v. Dole Nut Co. (1995) 41 Cal.AppAth 285 ........................................................................ 37
Taus v. Loftus (2007) 40 Ca1.4th 683 ................................................................................ 33
IV
Wilbanks v. Walk (2004) 121 Cal.AppAth 883 ...................................................................... 33
Yanowitz v. L 'oreal USA, Inc. (2005) 36 Ca1.4th 1028 .............................................................................. 39
STATE STATUTES Civil Code: § 1639 ........................................................................................................ 15
Code of Civil Procedure: § 425.16 ...................................................................................................... paSSIm
§ 425.16(b) .................................................................................................. 12
425.16(i) ...................................................................................................... 3
§ 904.1(a)(13) ............................................................................................. 3
§ 1060 ......................................................................................................... 41
Government Code: §§ 3060 - 3075 ........................................................................................... 6, 36
§ 54592.2(b)(1) ........................................................................................... 7
§ 54549 ....................................................................................................... 6
§ 54950 ....................................................................................................... 4
§ 54952.2 .................................................................................................... 6, 7, 37
§ 54957(b )(2) .............................................................................................. 43
§ 54963 ....................................................................................................... 6,38
Labor Code: § 1102.5 ...................................................................................................... paSSIm
§ 1106 ......................................................................................................... 35
v
CONSTITUTIONAL PROVISIONS
California Constitution, Article 1, § 1 ........................................................ 36
California Constitution, Article 6, § 11 ...................................................... 3
California Constitution, Article 11, § 5 ...................................................... 29, 30, 31, 32
OTHER AUTHORITIES Alameda City Charter § 2-2 ............ ........ ................ ................................... passIm
Alameda City Charter § 7-2 ....................................................................... 5,36,
Merriam-Webster's Dictionary .................................................................. 14
VI
INTRODUCTION - NATURE OF ACTION
Plaintiff and Appellant ANN MARIE GALLANT ("Gallant") brings
the present appeal after jUdgment was granted in favor of Defendant and
Respondent the CITY OF ALAMEDA, California ("City"). Gallant, the
City's former Interim City Manager, was terminated from that position in
December 2010 and subsequently filed suit against the City in the Alameda
County Superior Court in August 2011. Gallant's complaint alleged causes
of action for breach of contract and declaratory relief, in addition to two
claims under section 1102.5 of the California Labor Code ("Labor Code").
The City filed a special motion to strike Gallant's complaint under
California Code of Civil Procedure ("Code of Civil Procedure") section
425.16 ("anti-SLAPP statute"). The Superior Court, the Honorable
Marshall Whitley, denied this anti-SLAPP motion, holding that the
gravamen of Gallant's complaint did not arise from protected activity. The
City filed an interlocutory appeal in this Court. On appeal, this Court
reversed the Superior Court, ruling that Gallant's complaint arose from
protected activity under the anti-SLAPP statute, remanding the matter to
Superior Court for further proceedings.
On remand, Gallant's suit was assigned to the Honorable John M.
True, III. Following briefing and argument, Judge True held in favor of the
City, finding that Gallant was not "terminated", thus precluding her from
being able to succeed on her two Labor Code claims. Further, Judge True
found that Section 2-2 of the Alameda City Charter ("Charter"), which
governs certain adverse employment actions taken against Alameda's City
Manager, did not apply to Gallant's employment relationship with the City
because she was the Interim City Manager rather than the permanent City
Manager. Based on this analysis, Judge True dismissed Gallant's causes of
action for declaratory relief and breach of contract. Thus, everyone of
Gallant's causes of action were struck and her entire suit was dismissed as a
I
meritless SLAPP. 1 Gallant's claims were dismissed with prejudice and the
City was awarded its attorney fees and costs.
Judge True's rulings were incorrect as a matter oflaw and should be
overturned by this Court. Gallant was "terminated" from her position as
Interim City Manager and the Superior Court's ruling was clearly incorrect
in light of the evidence presented. Further, Judge True's determination that
Section 2-2 of the Charter was inapplicable to Gallant's employment with
the City is plainly erroneous, especially given the fact that the City
appointed Gallant Interim City Manager pursuant to its authority
established by Section 2-2. As Judge True's termination and Section 2-2
rulings formed the critical bases upon which each cause of action in
Gallant's complaint was dismissed and both rulings were incorrect, this
Court should, at a minimum, reverse Judge True on those points and
remand this matter back to the Superior Court for further proceedings.
However, based on the clarity of the record, Gallant asks that this
Court take the additional step of finding that Gallant presented sufficient
evidence to demonstrate a reasonable probability of success on each cause
of action she presented in her complaint, allowing her suit to finally
proceed to the merits of each cause of action after three years spent
litigating the SLAPP issue.
THE APPELLATE RECORD CONSISTS OF A JOINT APPENDIX AND A REPORTER'S TRANSCRIPT
This case's record consists of a three volume Joint Appendix ("JA")
and a two-volume Reporter's Transcript ("RT") of oral arguments in the
Superior Court surrounding the City's Objections to Evidence and the
hearing on the City's anti-SLAPP motion. 2
1 SLAPP is an acronym for "Strategic Lawsuit Against Public Participation" as defined in the anti-SLAPP statute.
2
STATEMENT OF JURISDICTION
The granting ofa section 425.16 anti-SLAPP motion is made
immediately appealable by Code of Civil Procedure section 425.16(i) and
904.1 (a)(13). (Cal. Code Civ.Proc. §§ 425.16(i), 904.l(a)(13).) The order
granting the City's anti-SLAPP motion to strike was entered on February
14,2014. (Tab 51, 3 JA 737.) Gallant lodged a timely appeal in the
Alameda County Superior Court on April 9, 2014. (Tab 54, 3 JA 772-773.)
Thus, appellate jurisdiction is conferred upon this Court to review the
Superior Court's granting of the City's anti-SLAPP motion pursuant to
Article VI, Section 11 of the California Constitution.
STANDARD OF REVIEW
A trial court's ruling on an anti-SLAPP special motion to strike is
reviewed de novo. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) The
question of the anti-SLAPP statute's applicability to Gallant's claims
having been already decided, the remaining question on appeal regarding
the City's anti-SLAPP motion is whether Gallant demonstrated at the trial
court level a reasonable probability of success on her causes of action.
While this is still a matter for de novo review, proper adjudication of this
question on appeal requires the Court to independently determine, based on
a review of the entire appellate record, if Gallant could have prevailed on
her claims. (Church o/Scientology v. Wollersheim (1996) 42 Cal.App.4th
628,653, overruled on other grounds in Equilon Enterprises v. Consumer
Causes, Inc. (2002) 29 Ca1.4th 53,67.)
2 Joint Appendix citations begin with the tab number where the pleading appears, followed by the volume and BATES page of the Joint Appendix. Where applicable, a paragraph symbol ("~") will appear after the page number.
3
SUMMARY OF FACTS AND PROCEEDINGS
Gallant's employment with the City began on July 26,2008 when
then-City Manager Debra Kurita appointed her Interim Finance Director.
(Tab 9, 1 JA 70.) Kurita resigned in 2009 and the City Council appointed
Gallant Interim City Manager on April 1, 2009. (Tab 9, 1 JA 70; Tab 13, 1
JA 162.) Gallant and the City signed a two-year employment contract
designated to expire on March 31, 2011, during which time the City would
attempt to recruit a candidate to permanently fill the City Manager position.
(Tab 13, 1 JA 172.) The City Council's authority to appoint Gallant
derived from Section 2-2(A) of the Charter. (Tab 12, 1 JA 106; Tab 13, 1
JA 177.)
A. The Lena Tam Investigation
In March 2010, Gallant became suspicious that Councilmember
Lena Tam ("Tam") was surreptitiously engaging in multiple illegal acts
compromising her fitness to serve on the City Council. (Tab 17,2 JA 229,
~ 3.) Specifically, Gallant learned of certain facts and information
suggesting Tam had violated California Government Code ("Government
Code") section 54950, et seq ("the Brown Act"). (Tab 17,2 JA 241-258.)
Gallant also came to believe Tam had and continued to violate the fiduciary
duties she owed to the City in her capacity as a Councilmember. (Tab 17,2
JA 229, ~ 3.)
At this time, the City was engaged in negotiations with SunCal, an
Irvine, California based real estate developer, to develop Alameda Point,
the name given to decommissioned Naval Air Station Alameda. (Tab 17,2
JA 229, ~ 3.) As Interim City Manager, Gallant was responsible for
negotiating various aspects of the proposed development agreement with
SunCal. (Tab 17,2 JA ~ 3.) She was also present at the closed-door City
Council sessions where the SunCal development was discussed. (Tab 17,2
JA ~ 3.)
4
During one Thursday morning negotiating session with Sun Cal,
Gallant realized that confidential information discussed in a closed-door
City Council meeting held the previous Tuesday was already known by
SunCal's representatives. (Tab 17,2 JA 229, ,-r 3.) In addition to the
SunCal matter, the City was also negotiating at this time with the
International Association of Fire Fighters ("IAFF") regarding collective
bargaining rights. (Tab 17,2 JA 229, ,-r 3.) As with the SunCal
negotiations, Gallant eventually became aware that confidential information
discussed in closed-door City Council sessions was known by IAPF
representatives when negotiations resumed. (Tab 17,2 JA 229, ,-r 3.)
Eventually, Gallant discovered that Tam had been communicating with
SunCal's Chief Operating Officer during negotiating sessions, leading her
to suspect Tam had been passing confidential information to not only
SunCal's representatives, but also the IAFF's representatives. (Tab 172 JA
229-230, ,-r,-r 3-4.)
Gallant immediately contacted Teresa Highsmith ("Highsmith"),
then Alameda's City Attorney, disclosing what she had learned regarding
Tam as she was required to do as City Manager under Section 7-2(M) of
the Charter. (Tab 17,2 JA 229-230, ,-r,-r 3-5.) Highsmith, who had her own
separate issues with Tam, told Gallant she had a conflict of interest and
instead referred Gallant to the City's outside counsel retained for Brown
Act issues, Michael Colantuono. (Tab 17,2 JA 229-230, ,-r 3-4; Tab 51, 3
JA 743.) Colantuano conducted a lengthy investigation into Tam's
activities, which culminated in an extensive investigative report in May
2010 that Colantuano submitted to Assistant Alameda County District
Attorney Lawrence Blazer. (Tab 17,2 JA 230, ,-r,-r 5-6.)
This report strongly recommended that Tam be prosecuted for
multiple and repeated Brown Act violations, amongst other legal and
ethical violations, removed from office and charged by a grand jury
5
pursuant to Government Code sections 3060-3075 and 54549. (Tab 17,2
JA 241-258.) The thrust ofColantuano's report was that, in relation to the
City's SunCal and lAPP negotiations, Tam had engaged in multiple
unlawful "serial meetings" in addition to purposefully releasing
confidential information learned in a closed-door City Council meeting in
violation of section 54963 of the Brown Act. (Tab 17,2 JA 241-258.)
Specifically, Colantuono found that on numerous occasions, Tam
violated Section 549633 by sending emails to other Councilmembers
pertaining to information learned and discussed in closed-door City Council
sessions and then blind carbon copying those emails to outside parties.
(Tab 17,2 JA 244-245.) Colantuono determined that Tam sent a copy of an
email toPatKeliher.SunCal.sVice President, on March 17,2010 revealing
"the City Attorney's legal advice" regarding the SunCal negotiations
directly to SunCal (this email was also sent to Councilmember Marie
Gilmore ["Gilmore"], then-Mayor Beverly Johnson and Highsmith). (Tab
17,2 JA 243.) Colantuono also discussed two emails Tam sent on March
19, 2010 to an Alameda blogger named John Knox White, again revealing
confidential information learned in closed Council sessions to an outside
party. (Tab 17,2 JA 244.) One of these emails contained a copy of a
report prepared for the City Council by Highsmith's office marked
"CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE." (Tab 17,2 JA
244.)
Colantuano's report further listed frequent violations of the Brown
Act's "serial meetings" provisions (section 54952.2, which does not allow
members of a city council to "discuss" any item or matter within that
3 This portion of the Brown Act partially provides: "A person may not disclose confidential information that has been acquired by being present in a closed session ... to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information." (Cal. Gov. Code § 54963.)
6
council's jurisdiction in a meeting or setting not explicitly authorized by the
Brown Act)4 committed by Tam. (Tab 17,2 JA 245-248.) Colantuano
pointed to multiple instances of Tam emailing and blind carbon copying
two or more City Council members (thus constituting a majority of the
Council) regarding matters properly brought forth, discussed and debated in
Brown Act-sanctioned meetings. (Tab 17,2 JA 245-248.) These matters
included a controversy surrounding Alameda's fire chief, David Kapler, the
SunCal negotiations, and Tam's submission of a written proposal to the
Council relating to the review ofland use and zoning procedures Tam's
emails showed had been written by Knox White, not Tam. (Tab 17,2 JA
246-247.) In all, Colantuano's report reflected that Tam had continuously
attempted to advocate for and change multiple issues of public concern via
illegal "serial meetings", specifically her secretive email communications
with various members of the City Council. (Tab 17,2 JA 257.)
Colantuano also concluded that Tam's universal use of blind carbon copies
of these emails indicated her desire to secretly communicate this
information, suggesting a specific knowledge that she was violating Brown
Act. (Tab 17,2 JA 244-245.)
Meanwhile, Gallant informed the City Council of Colantuano's
investigation and report in July 2010 (which had prior to that point been
confidential) in a July, 2010 meeting. (Tab 17,2 JA 231, ~~ 8-9.) Then,
on September 2, 2010, the District Attorney replied directly to
Colantuano's reports. (Tab 11, 1 JA 95-97.) In a three page letter, Nancy
O'Malley, the District Attorney, informed Colantuano that no further
investigation into Tam's activities and alleged Brown Act violations would
4 Section 54952.2 states that "[a] majority of the members ofa legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind ... to discuss, ... any item of business that is within the subject matter jurisdiction of the legislative body." (Cal. Gov. Code § 54592.2(b)(1).)
7
be conducted and that Tam would not be prosecuted, nor would her office
seek a grand jury charge. (Tab 11, 1 JA 95-97.)
B. Repercussions and Gallant's Termination
Immediately after presenting Colantuono's report to the City
Council in July 2010, Tam and Gilmore began acting with open hostility
towards Gallant. (Tab 17,2 JA 231, ~ 10.) Gilmore refused to speak
directly with Gallant from that point forward, instead communicating
vicariously with Gallant's staff. (Tab 17,2 JA 231-232, ~ 10.) Gilmore
further continuously cancelled scheduled meetings with Gallant for reasons
unknown. (Tab 17,2 JA 231-232, ~ 10.) Tam sent an e-mail to Gallant
informing her she would no longer attend their bi-monthly face-to-face
meetings, during which standard city administration issues were discussed.
(Tab 17,2 JA 231, ~ 10.) Additionally, both Councilmembers continuously
engaged in public displays of rudeness and disrespect in addition to
consistently opposing any project or proposal Gallant submitted to the
Council, including projects both had previously supported. (Tab 17,2 JA
232, ~ 11.)
In a September 7,2010 Council meeting, Tam stated that "As
everyone knows, I have some serious issues with the City Manager and I
intend on dealing with these issues in her performance evaluation process
which is the appropriate forum." (Tab 17,2 JA 233, ~ 14.) Immediately
after the September 7 City Council meeting ended, Tam held a press
conference on the steps of Alameda City Hall, spending the majority of it
lobbing rhetorical fusillades at Gallant. (Tab 17,2 JA 234, ~ 15.)
Specifically, Tam stated that she was the ''victim of a self-serving character
attack" which was prompted by Tam daring "to question the motives of the
City Manager." (Tab 17,2 JA 234, ~ 15.) Tam demanded that Gallant "be
held accountable" and called for her immediate resignation. (Tab 17,2 JA
234, ~ 15.)
8
City Council elections were held in late 20 10, and a new
Councilmember named Rob Bonta ("Bonta") was elected. (Tab 17,2 JA
235, ~~ 17-18; Tab 51, 3 JA 741, ~ 6.) Bonta was sworn in on December
21,2010. (Tab 17,2 JA 235, ~~ 17-18; Tab 51, 3 JA 741, ~ 6.) On
December 28,2010, the City Council voted to terminate Gallant's Interim
City Manager contract in a closed session, effective March 31, 2011, with
Gilmore, Tam and Bonta all voting in favor of termination. (Tab 13, 1 JA
165-166, ,-r,-r 20-22.) Gallant was not provided any written notice of this
closed session meeting. (Tab 17,2 JA 235 ~ 17.) The City Council also
voted to place Gallant on paid administrative leave until her contract's
March 31,2011 end date. (Tab 17,2 JA 235, ~ 17.) The decision to place
Gallant on administrative leave resulted in her being barred from engaging
in any further work as City Manager. (Tab 17,2 JA 236, ~ 21.) Gallant
was notified in writing of this decision on December 29, 2010 while on
Christmas vacation in a letter sent by Gilmore in her new capacity as
Mayor. (1 JA 185-186; 2 JA 235 ~18.) Gilmore's letter directed Gallant to
turn over her keys and other city property to Karen Willis, the City's
Human Resources Director. (1 JA 185-186.) Gilmore's letter did not invite
Gallant to apply for the permanent City Manager position, nor did it even
inform her that the City Council had elected to institute a competitive City
Manager recruitment. (Tab 13, 1 JA 185-186; Tab 17,2 JA 236-237, ~ 24.)
C. Gallant Sues The City
Gallant sued the City in the Alameda County Superior Court on
August 15,2011, alleging violations of Labor Code section 1102.5(b) and
(c), breach of contract and requesting declaratory relief. (Tab 1, 1 JA 1-6,
~~ 1-31.) Shortly after Gallant brought suit, the City filed a special motion
to strike under the anti-SLAPP statute, arguing that the thrust of Gallant's
complaint arose from activity protected as defined by that law. (Tab 9, 1
9
JA 62-82.) The trial court denied the City's motion and the City appealed.
(Tab 26, 2 JA 502; Tab 27, 2 JA 504-505.)
On appeal, this Court reversed the trial court, holding that the factual
underpinnings of Gallant's complaint arose solely from protected activity
for purposes of the anti-SLAPP statute. (Tab 33, 3 JA 521-528.) This
meant that the City met its burden of demonstrating Gallant's complaint fell
within the purview of the anti-SLAPP law, shifting the burden to Gallant to
demonstrate a reasonable probability of success on the merits of her claims.
(Tab 33, 3 JA 527.) This Court remanded the matter to the Superior Court
for proceedings in accordance with those instructions. (Tab 33, 3 JA 528.)
On remand, the Superior Court eventually ruled against Gallant and
struck her entire complaint as a meritless SLAPP. (Tab 51, 3 JA 749.) The
crux of the Superior Court's ruling stemmed from two determinations.
First, the court determined that Gallant was not "terminated", thus
precluding both causes of action she brought under the Labor Code. (Tab
51, 3 JA 744-748.) Second, the court reasoned that the Charter was
inapplicable to Gallant's employment contract, meaning Gallant was not
protected by that document's restrictions on City Council actions taken
against the City Manager. (Tab 51, 3 JA 749.) This meant that Gallant's
request for declaratory relief and her claim for breach of contract could not
survive the City's anti-SLAPP motion due to both Causes of action either
relying on or incorporating of Section 2-2 of the Charter as a critical
element. (Tab 51, 3 JA 748-749.) All claims were thus dismissed with
prejudice by the Superior Court under the anti-SLAPP statute. (Tab 51, 3
JA 749.)
D. Current Appeal
On April 9, 2014, Gallant appealed the Superior Court's ruling.
(Tab 54, 3 JA 772-773.) Gallant contends that she was in fact terminated,
the Charter governed her employment contract, and that she demonstrated
10
in the Superior Court a reasonable probability of succeeding on the merits
of each cause of action alleged in the complaint. That appeal is now before
this Court.
ARGUMENT
The judgment should be reversed and the case remanded to the
Superior Court for further proceedings. Gallant was terminated from her
position as Interim City Manager, both under the commonly understood
definition of "termination" and as that term, and the procedure for
effectuating a termination, is expressed in Gallant's contract. As the
Superior Court erroneously stated that Gallant was incapable of success on
the Labor Code retaliation causes of action because she was not
"terminated", the judgment should be reversed as to those two claims.
Additionally, the Superior Court's finding that the Charter did not
apply to Gallant's employment contract was wholly incorrect and must be
overturned. If sustained, this ruling would contradict the well-established
principle that any action taken by a charter city in direct conflict with its
charter is null, void and without legal effect. Gallant was appointed City
Manager, albeit to an interim two-year term, pursuant to the City Council's
authority under Section 2-2(A) of the Charter. Section 2-2(A) is
inextricably linked to Section 2-2(B), which governs removal and
suspension (amongst other things) of the City's appointive officers,
including the City Manager. Accordingly, the Superior Court's finding that
the Charter's termination provisions did not apply to Gallant's employment
relationship with the City, thus precluding her from success on her
declaratory relief and breach of contract claims, is clearly wrong and must
be reversed.
In addition to reversing the Superior Court's erroneous findings
regarding both the termination and Charter applicability issues, this Court
should find that, on the basis of the evidence presented below, Gallant
11
demonstrated a reasonable probability of succeeding on each cause of
action listed in her complaint, thus satisfying her burden of proof under the
anti-SLAPP statute. Gallant's pleadings, in addition to the admissible
evidence introduced, affirmatively establish that each cause of action in her
complaint has, at the very least, "minimal merit" as is required by
California law to defeat a defendant's anti-SLAPP motion.
I.
THE ANTI-SLAPP STATUTE GENERALLY
Gallant's complaint was struck and dismissed in its entirety under
the anti-SLAPP statute. (Tab 52, 3 JA 766.) Specifically, the Superior
Court found that, in light of all the evidence presented and briefed, Gallant
failed to demonstrate that she possessed a reasonable probability of
succeeding on the legal merits of any of the four causes of action alleged in
the complaint, requiring dismissal under subsection (b) of the anti-SLAPP
statute. (Tab 52, 3 JA 766.)
A. C.C.P. § 425.16 - The Anti-SLAPP Statute's Relevant Portions
The anti-SLAPP statute provides in relevant part:
"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 .. .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. "
(Emphasis added.)
Further:
"In making its determination, the court shall consider the (1) pleadings, and (2) supporting and opposing affidavits stating the facts upon which the liability or defense is based."
(Cal.Code Civ.Proc. § 425.16(b).)
As this Court previously determined Gallant's complaint fell within
the purview of the anti-SLAPP statute's protections, the only question
12
remaining on this appeal is whether the underlined portion of the statute
mentioned above was properly applied by the Superior Court based on the
evidence submitted by the parties. Judge True found that Gallant could not
succeed on any of her four causes of action. (Tab 52, 3 JA 766.)
Specifically, his finding that Gallant was not "terminated", under his
analysis, precluded her from being able to successfully allege either of her
Labor Code causes of action and his ruling on Section 2-2 precluded any
chance of success on Gallant's declaratory relief and breach of contract
claims. (Tab 51, 3 JA 744-749.) Thus, the City's motion was successful
and Gallant's complaint was dismissed pursuant to the anti-SLAPP statute.
II.
GALLANT UNEQUIVOCALLY DEMONSTRATED THROUGH ADMISSIBLE EVIDENCE THAT HER EMPLOYMENT
WAS TERMINATED BY THE CITY
Whether the City "terminated" Gallant from her position as Interim
City Manager is one of two crucial questions this Court must resolve. The
City vociferously argued that Gallant's employment contract was merely
not renewed by the December 28, 2010 vote, meaning Gallant was not
terminated. The import of this question arose from the nature of her causes
of action themselves: according to this Court (in the interlocutory appeal)
each claim for relief was predicated on the City's actions taken in
connection with the termination of Gallant's employment. (Tab 33, 3 JA
525.)
The Superior Court agreed with the City's characterization of the
December 28, 2010 vote, finding that the City merely decided "to let the
contract lapse" in "accordance with the terms of Section 2 of the contract
agreed to by the parties[,]" meaning Gallant was not "terminated." (Tab 51,
3 JA 746.) Further, as the interlocutory ruling issued by this Court
determined that Gallant's entire complaint implicated activity protected by
13
the anti-SLAPP statute, her inability to succeed on the Labor Code claims
therefore rendered half her complaint a meritless SLAPP. Thus, the
question of whether Gallant was terminated is critical.
The Superior Court arrived at an incorrect answer to this question, as
a matter of both fact and law. Gallant introduced admissible evidence
refuting this contention which established that the City's actions towards
her terminated her employment rather than the City merely declining to
renew her contract. This contention is robustly supported by multiple
factual and evidentiary averments.
A. The Language In Gallant's Employment Contract, In Addition To The Termination Letter Sent By Alameda Mayor Marie Gilmore, Clearly Demonstrate That Gallant Was Terminated On December 28,2010.
The Superior Court heavily relied on the fact that Section 5 of
Gallant's employment contract contained termination provisions, yet the
City allegedly declined to terminate her under this portion of the contract,
instead opting to let Gallant's contract simply expire. (Tab 51, 3 JA 745-
746.) This characterization cannot be reconciled with the fact that the
City's actions on December 28,2010 unequivocally reflect the procedures
spelled out in Section 5(B)(2) of the contract (broadly subtitled
"Termination and Removal"), a section the Superior Court ironically cited
when explaining its finding that Gallant was not terminated - "Had the City
wished to terminate the Plaintiff, it could have done so under Section 5 of
the contract entitled "Separation" which gives the City, among other
prerogatives, the right to remove Plaintiff without cause (Section 5(B)) ... ")
(Tab 51, 3 JA 745.)
"Termination" is defined by Merriam-Webster's Dictionary as to
"end in time or existence." However, the parties to a contract can change
the ordinary meaning of a term with specific contractual language which
allows a court to deduce the parties' intentions in defining certain acts in
14
specific ways. (Founding Members o/the Newport Beach Country Club v.
Newport Beach Country Club, Inc. (2003) 109 Cal.AppAth 944,955; see
generally Cal. Civ. Code § 1639.) As the Superior Court noted in its
dismissal order, Section 5(B)(2) of Gallant's employment contract with the
City defines what constitutes a "termination" of the Interim City Manager.
(Tab 13, 1 JA 177; Tab 51, 3 JA 745.) This portion of the contract provides
that:
"The City Council may remove the Interim City Manager at any time, with or without cause, by a majority vote of its members. Notice of contract termination shall be provided to the Interim City Manager with 90 days advance notice ... the Interim city Manager shall remain on payroll for the 90 day period and receive full pay and benefits."
(Tab 13, 1 JA 177.)
The above-quoted passage is notable in that it spells out the City
Council's exact steps in removing Gallant from her position as Interim City
Manager when it voted not to extend her contract. A 3-2 majority voted to
remove Gallant on December 28,2010. (17,2 JA 235, ,-r 17.) The next
day, newly-elected Mayor and former Councilmember Marie Gilmore (who
voted to remove Gallant) mailed Gallant a letter, discussed in detail below,
informing her that the City Council decided not to renew her contract after
March 31, 20 11 (which Gilmore deemed the "termination" date) but that
Gallant would continue receiving her full salary and benefits until that time.
(Tab 13, 1 JA 185.) Gallant was also placed on administrative leave and
prevented from engaging in any further work as Interim City Manager.
(Tab 17,2 JA 236, ~ 21.)
This itself should dispel all doubt surrounding the contention that the
City terminated Gallant. Section 5(B)(2) clearly and unambiguously
provided a roadmap for the City Council to remove Gallant and terminate
her contract. And the City precisely followed this roadmap on December
15
28,2010: Gallant was removed from her job when the City placed her on
administrative leave, prevented from returning to work and told to
immediately hand over all government property still in her possession. She
retained her full salary and benefits for 93 more days. Thus, the December
28, 2010 vote terminated Gallant.
Bolstering this conclusion is Gilmore's letter stating that the City
Council undertook these exact "Termination and Removal" steps.
Specifically, Gilmore stated in the first paragraph of her letter that the City
Council decided "not to renew" Gallant's appointment as Interim City
Manager due to the pending "termination of your contract" as voted on the
day prior, but that Gallant would continue to be paid through March 31,
2011, the "termination date." (Tab l3, 1 JA 185.) All of these are in
concert with Section 5(B)(2)'s definition of removal and termination.
Moreover, Gilmore also informed Gallant that she was being placed
"on paid administrative leave" effective December 29th, forcing Gallant to
immediately turn over all items of City property in her possession. (Tab
l3, 1 JA 185.) This directive included immediately relinquishing
possession of keys and other City property, in addition to forcing Gallant's
immediate cessation of ongoing projects and removal of her personal
belongings, to say nothing of her very presence, from City Hall. (Tab 17,2
JA 236, ~ 21.) Accordingly, Gallant was removed from her position as
Interim City Manager immediately after the City Council's December 28,
2010 vote.
Thus, the undisputed evidence contained in this material leads to the
inescapable conclusion that the City removed and terminated Gallant
according to the plain language of Section 5(b )(2): a majority of the City
Council resolved not to renew Gallant's contract, provided 90-days notice,
continued paying Gallant and placed her on immediate administrative
leave, which removed her in all meaningful aspects aside from the
16
continuing receipt of a paycheck from her position as Interim City
Manager. Further, Gilmore also characterized the City Council's vote as
not really a non-renewal but as an actual termination in her letter. The
City's actions thus fall entirely within the ambit of Section 5(B)(2) of the
employment contract.
Accordingly, under both the commonly understood meaning ofthe
word "termination" ("to end in time or existence") and the unambiguous
language of the freely and fairly bargained employment contract between
Gallant and the City, Gallant was terminated both as a matter of fact and
law.
B. Section 2 of Gallant's Contract, the Non-Renewal Portion, Did Not Apply To The City Council's December 28,2010 Vote.
The City will likely counter by arguing that Section 2 of the
employment contract allowed the City Council to simply provide Gallant
with 90-days notice of its intent not to renew her contract and that the City
did exactly this, rendering the December 28, 2010 vote a "non-renewal" as
opposed to a termination.5 This was a heavily litigated issue in the
proceedings below and the Superior Court eventually agreed with the City's
argument, with Judge True stating that "the City could elect not to renew"
Gallant's contract and that the December 28 vote simply led to a point
where Gallant's contract "expired", meaning she was not "terminated."
(Tab 52, 3 JA 758.) This finding is incorrect and this Court should not be
swayed by mere wordsmithing rather than actual facts.
The problem with the City's approach as adopted by the Superior
Court is that describing the crux of the matter as the City simply declining
5 Section 2 of the contract provides in relevant part that "[t]he City Council shall provde the Interim City Manager with written notice of non-renewal at least 90 days prior to the initial Termination Date or any succeeding Termination Date." (Tab 13, 1 JA 172)
17
to renew Gallant's contract is a disingenuous, if not a bald misstatement, of
the facts, conduct and circumstances of Gallant's termination. If the City
Council simply declined to her contract, Gallant would not have been
placed on administrative leave and prevented from returning to work for the
duration of the contract term - she would have been given 90 days to see
out her contract and at the end of that period her contract would have
simply expired. Rather, by taking the retaliatory step of placing Gallant on
administrative leave, the City Council removed her from her position as
Interim City Manager with immediate effect. The City can dissemble as to
the definitional machinations of the City Council's actions, but the simple
truth is that relegating Gallant to administrative leave brought the City
Council's conduct within the purview of Section 5(B)(2) of Gallant's
contract, not Section 2, because forcing Gallant out until her contract
expired necessarily constituted removing her from her role as Interim City
Manager.
Section 2 and Section 5(B)(2) may well be functionally similar
provisions in that they are essentially designed to achieve the same goal:
ending the Interim City Manager's contract. Further, both layout similar
procedures for achieving that end. However, nothing in Section 2
describing the City Council's non-renewal prerogative references or alludes
to either placing the Interim City Manager on administrative leave or taking
affirmative measures to prevent her from doing her job. Section 5(B)(2)
does so in that it contains language providing for the City Council to
remove the Interim City Manager, rather than merely provide notice of a
non-renewal as Section 2 does. (Tab 13, 1 JA 177.) The City removed
Gallant during the contract term (not at the contract's expiration), thus she
was terminated according to Section 5(B)(2) of her contract.
18
C. That Gallant Did Not Apply For The Permanent City Manager Position Is Irrelevant In Determining Whether She Was Terminated
The City further argued in its anti-SLAPP motion and related
pleadings, and will likely do so again here, that Gallant of her own volition
declined to apply for the permanent City Manager position, thus
undercutting her claims that she was terminated. (Tab 48,3 JA 695.)
Specifically, the City claimed that by failing to apply for the permanent
position, Gallant failed to exhaust her administrative remedies, thereby
precluding her from bringing any lawsuit relating to her termination. (Tab
48,3 JA 700-701.)
The Superior Court largely agreed with the City's reasoning, stating
in its judgment and order that Gallant never sought permanent employment
with the City "by applying for the permanent City Manager position" in
discussing of why Gallant failed to demonstrate she was terminated. (Tab
51,3 JA 745l The Superior Court's reasoning here is flawed because
there is no reasonable factual or legal connection supporting any viable
theory that, since Gallant did not seek a separate job as permanent City
Manager, the City's retaliatory placement of Gallant on administrative
leave, removal from her job as Interim City Manager and declination to
renew her contract must have been lawful. Further, Gallant had no
6 The Superior Court said nothing about the "exhaustion" doctrine in its order in the section discussing on Gallant's failure to apply for the permanent position, making it unclear to what extent Gallant's alleged failure to exhaust formed the basis of Judge True's ruling. However, at oral argument on November 27,2013, Judge True opined that it was likely fatal to Gallant's claims for relief that she did not apply, stating that this fact was not "surmountable" unless she could provide "really good evidence that it was futile." (1 RT 11:8-12.) Judge True also agreed with counsel for the City's claim that Gallant failed to exhaust and did not prove futility by stating "I intend to agree with that, when we get to that point ... " (1 RT 33:8-9.)
19
administrative remedy available to exhaust in the first place, and even if, as
the City argued below, applying for the permanent City Manager job
constituted an administrative remedy, it would have been futile for Gallant
to do so.
1. Gallant Had No Administrative Remedy To Exhaust
The position that the permanent City Manager position constituted
an administrative remedy Gallant failed to pursue and exhaust is flatly
wrong. 'Administrative remedy' is a term of art which must be
distinguished from the reality here, which is simply that Gallant declined to
seek a new (albeit similar) job after being forced out of her old one.
Generally stated, the exhaustion doctrine provides that "where an
administrative remedy is provided by statute, relief must be sought from the
administrative body and this remedy exhausted before courts will act."
(A belle ira v. District Court a/Appeal (1941) 17 Ca1.2d 280,292.) "The
gist of [the exhaustion doctrine] is a respect for internal grievance
procedures" established by an entity or employer for resolving internal
disputes. (Schifando v. City a/Los Angeles (2003) 31 Ca1.4th 1074, 1092.)
This rule is a jurisdictional requirement which must be fulfilled before a
plaintiff may tum to the court system in pursuit of relief. (Johnson v. City
a/Lorna Linda (2000) 24 Ca1.4th 61, 70.)
The exhaustion doctrine further contemplates the presence of a
"quasi-judicial tribunal" capable of promoting judicial economy "by
unearthing the relevant evidence and providing a record should there be a
review of the case." (Campbell v. Regents a/University a/California
(2005) 35 Ca1.4th 311. 327-328.) Additionally, in the context of a
retaliation claim based on Labor Code section 1102.5, an administrative
remedy exists only where the quasi-judicial tribunal in question has a
policy in place "established to handle complaints of retaliatory dismissal for
whistleblowing in an orderly manner." (Id. at 324)
20
Campbell is particularly instructive here. There, a University of
California ("UC") employee sued the UC Regents for, amongst other
things, retaliation in violation of Section 1102.5. (Id at 319.) UC San
Francisco, where the plaintiff worked and from where she was fired,
established a specific "Policy and Procedures" manual governing internal
grievances spanning a diverse array of complaints, including claims of
unlawful termination based on retaliation. (Id. at 318.) The plaintiff failed
to follow these procedures, instead filing a complaint in Superior Court
alleging violations of whistle blower statutes under the Government Code
and Labor Code. (Id. at 319.) The California Supreme Court held that the
plaintiff had a legally established and viable administrative remedy
available and, by failing to pursue it, was precluded from litigating her
claims in Superior Court as a jurisdictional matter. (Id. at 333.)
Unlike Campbell, there existed no policy or procedure in this matter
"to handle complaints of retaliatory dismissal for whistleblowing in an
orderly manner." Nor was there any "quasi-judicial tribunal" to collect and
clarify evidence in the event of a future lawsuit. Indeed, the City
established no grievance procedure of any kind whereby Gallant could have
presented her claim that the City retaliated against her, violated the Charter
and breached its contractual obligations. Rather, the City Council simply
elected to recruit and select a permanent candidate to fill the City Manager
position after firing the Interim City Manager. Thus, claiming Gallant had
an available administrative remedy to adequately litigate her legal claims
by applying for the permanent City Manager position is tantamount to
calling a job application process a "quasi judicial tribunal" designed to
render adjudication of a legal grievance. This is fundamentally absurd, to
say nothing of the fact that Gallant would have had to apply to and be
selected by the very entity she claimed retaliated against her in the first
place - the City Council. Gallant had no available administrative remedy
21
and the exhaustion doctrine is simply inapplicable to a situation such as
this.
2. Assuming Arguendo The Applicability of the Administrative Remedies "Exhaustion" Doctrine, Applying For The Permanent City Manager Job Would Have Been Futile
Even if the permanent City Manager position constituted an
administrative remedy Gallant failed to pursue, she was still excused from
complying with the exhaustion doctrine because applying for the permanent
job would have been utterly futile. (See City of Dana Point v. California
Coastal Commission (2013) 217 Cal.App.4th 170, 193: "[ f]ailure to exhaust
administrative remedies is excused if it is clear that exhaustion would be
futile.") This futility exception to the administrative remedies doctrine
applies if the party invoking the exception can positively demonstrate that
the deciding body has already declared what its ruling will be on a
particular case. (Id. at 193.)
While Gallant was not affirmatively barred by the City from
applying, and was thus technically eligible to seek the permanent position,
Gilmore's letter made clear that Gallant would never obtain this position.
As discussed earlier, Gilmore's letter repeatedly alluded to the fact that
Gallant would, after March 31, 2011, no longer be employed by the City
through such statements as both Gilmore's invitation to address City
employees one final time and the statement "1 wish you well in your future
endeavors." (Tab 13, 1 JA 185-186.) Tellingly, in addition to the sense of
finality conveyed by Gilmore's words, this letter contained no reference to
the Council's decision to institute a permanent City Manager recruitment,
nor did it invite Gallant to pursue the job. (Tab 13, 1 JA 185-186.)
Going further, Tam and Gilmore, who provided two of the three
votes in favor of terminating Gallant, had on multiple prior occasions made
clear that Gallant's employment status with the City was finished-
22
permanently. Tam stated in a September 7, 2010 City Council meeting that
she had "serious issues" with Gallant, with Gilmore in agreement. (Tab 17,
2 JA 233, ~ 14.) Tam held a press conference the same day whereby she
publicly attacked Gallant; calling for her resignation and claiming to have
been the victim of a "self-serving character attack". (Tab 17,2 JA 234,
~15.) Tam also noted that as a result of her issues with Gallant, Gallant's
job performance would be in limbo when it came time for the City Council
to vote on Gallant's contract status. (Tab 17,2 JA 233, ~ 14.) Further,
Bonta had never so much as met or spoke with Gallant prior to providing
the critical third vote in favor of termination. (Tab 17,2 JA 235, ~ 18.)
Simply put, stripping Gallant of all responsibility and contact and
placing her on administrative leave, demanding her resignation and letting
her contract lapse was an unequivocal signal from the City Council that a
new City Manager would be selected - not Gallant. This is the same City
Council which could have, pursuant to the plain terms of Gallant's contract,
taken no action whatsoever regarding her employment status, which would
have resulted in Gallant retaining her position until its expiration. Or the
City Council could have avoided placing Gallant on administrative leave
for the final three months of her contract period, allowing her to continue
working and polishing her credentials for the permanent City Manager
position. But the City chose to do none of these things. Instead it expelled
Gallant for the final three months of her contract and resolved to let the
contract expire, thus permanently removing her from office from the date of
the expulsion.
Anything the City proffers in rebuttal should not be permitted to
obfuscate this reality. No sleight of hand or eloquent linguistic subterfuge
can undercut the fact that by terminating Gallant's contract, suspending her,
publicly demanding she resign, not allowing her to actually engage in
work-related activities and barring her from physically entering her office
23
at City Hall for the remaining three months of her employment term, the
City made clear Gallant's employment association with it was
unequivocally moribund. The law does not require a futile act and Gallant
did not have to pointlessly attempt to secure a position she had no chance of
obtaining in order to seek redress in a court oflaw.
3. Gallant's Termination As Interim City Manager Is Completely Unrelated To Her Decision Not To Apply For The Permanent City Manager Job.
Leaving the exhaustion issue aside, Gallant's decision not to seek the
permanent City Manager position is also completely irrelevant to
answering the question of whether she was terminated from her position as
Interim City Manager. The two positions are distinct from one another and
the question of Gallant's termination as Interim City Manager is simply in
no way informed by her decision not to seek the permanent position. To
state otherwise, as both the City and the Superior Court did, inherently
suggests that if Gallant had chosen to seek permanent appointment to the
City Manager post, rather than declining to, the City Council's 3-2
determination not to renew Gallant's contract could have then morphed
from a mere act of letting a contract "lapse" into a "termination". This is of
course pure nonsense. No practical connection exists between the
permanent and Interim City Manager positions for purposes of determining
whether Gallant was terminated as Interim City Manager.
D. The December 28,2010 Vote Was An Act of Termination Because It Ended Gallant's Employment Relationship With The City
By resolving to allow Gallant's contract to lapse and her
employment to end, the City Council terminated the written instrument
which allowed Gallant to be employed at all - her contract. Had the City
Council done nothing at all up until March 31, 2011, Gallant's contract
would have continually renewed for 90-day intervals until the City Council
24
affirmatively determined to terminate or not renew it under the explicit,
unambiguous wording of the contract. 7 Thus, the City Council was
required to take affirmative action to terminate Gallant's contract and
employment. By voting not to renew her contract, the City Council took
said action to end - terminate - Gallant's employment, as it had to do
pursuant to the explicit wording of the contract, thereby ensuring that, she
would no longer serve in the capacity of Interim City Manager. Gallant
was terminated from her position.
III.
SECTION 2-2 OF THE CHARTER APPLIED TO GALLANT'S EMPLOYMENT AS INTERIM CITY MANAGER AND
THE CITY VIOLATED THIS PROVISION WHEN IT SUSPENDED AND TERMINATED HER
The Superior Court held that because Gallant was the Interim City
Manager, Section 2-2 of the Charter was inapplicable to her employment
relationship with the City, as that provision only covered the permanent
City Manager position. (Tab 51, 3 JA 749.) Because Gallant's declaratory
relief and breach of contract claims both alleged the City violated Section
2-2 as a critical element, Judge True dismissed both causes of action as
7 Gallant's trial counsel made a similar point in his anti-SLAPP pleadings. The City responded by claiming Gallant was seeking "favoritism" and that she "lured" the City Council into appointing her to a caretaker position, which she subsequently attempted to commandeer on a permanent basis without having to ever apply for. (Tab 50, 3 JA 723-736.) This is fundamentally untrue, and, in any case, irrelevant - the City Council, pursuant to Gallant's employment contract, was required to take affirmative action to end Gallant's employment as Interim City Manager. If it had not done this, the plain words of the contract dictate that Gallant would have remained in that position until the City Council provided effective 90-day notice telling her otherwise. By bringing this to the Court's attention, Gallant is in no way seeking favoritism; she is merely pointing out what the result would have been under the contract had no action whatsoever been taken by the City Council.
25
bearing no chance of success without engaging in further analysis. (Tab 51,
3 JA 748-749.) This ruling was clearly erroneous.
A. Gallant Was The "Incumbent" City Manager Under Section 2-2 Because Section 5(B)(2) Of Her Contract Explicitly Appointed Her Pursuant To That Section Of The Charter.
Section 2-2 states:
(A) The following offices are hereby established and the incumbents thereof shall be appointed or removed by a vote of a majority of the full council: City Manager, City Attorney, City Clerk.
(B) During a period of ninety days immediately following the date of installation of any person newly elected to the Council, the Council shall take no action, whether immediate or prospective, to remove, suspend, request the resignation of, or reduce the salary of, the incumbents in the aforementioned appointive offices.
(Tab 12, 1 JA 106.)
As demonstrated in the preceding sections, Gallant was expelled and
removed from her position as Interim City Manager when the City Council
placed her on administrative leave for the duration of her contract on
December 28,2010. Her employment was also effectively terminated by
the City Council that same day, a mere seven days after the installation of
Bonta as a Councilmember. This is a clear violation of Section 2-2(B)
because Gallant was the incumbent City Manager within the meaning of
that Charter provision when her contract was terminated, thus the Council
could not "take any action to" "remove" or "suspend" her from her
employment in that capacity within 90 days of December 21,2010.8 The
December 28 vote being both "an action ... to remove" and "suspend"
Gallant seven days after the installation of a new Councilmember, this vote
8 Despite the fact that Gallant's employment contract, and thus her employment itself, expired 93 days later, the City Council's vote was clearly "an action to" "remove" and "suspend" Gallant, both prospectively and immediately within the meaning of Charter Section 2-2.
26
was legally ineffective. Further, this vote being the only action the City
Council took regarding Gallant's employment status, the City never
lawfully terminated Gallant's employment as Interim City Manager.
The importance of this issue to Gallant's entire lawsuit is paramount.
If this Court finds, as it should, that Section 2-2 of the Charter governed
Gallant's employment status as Interim City Manager, there is no way to
escape the conclusion that the City Council's December 28,2010 vote
violated the Charter and is thus void. Section 5(B)(1) of Gallant's
employment contract explicitly states that Gallant position as Interim City
Manager existed "at the pleasure of the City Council under the authority of
Charter Section 2-2(A)." (Tab 13, 1 JA 177.) (Emphasis added.) As
Section 2-2(A) makes clear, the City Council may appoint an "incumbent"
City Manager. Section 2-2(B) then commands that when the City Council
swears in any new member, it may take "no action, whether immediate or
prospective, to remove" the incumbent City Manager for 90 days. (Tab 13,
1 JA 177.)
As the contract explicitly stated that Gallant's appointment was
being made pursuant to Section 2-2(A), Gallant was the "incumbent" City
Manager within the meaning of that section. The plain language of Section
2-2 allows for no reasonable contrary position. And as the incumbent City
Manager, the City Council was limited by Section 2-2(B) in taking action,
"immediate or prospective" to "remove" and/or "suspend" her from that
position. Yet, the Council acted to immediately suspend Gallant from her
position only seven days after impanelling Rob Bonta as a new
Councilmember by placing her on administrative leave and preventing her
from acting in any official capacity as Interim City Manager until her
contract expired. Further, the City acted to immediately and prospectively
remove her from the position of Interim City Manager by resolving not to
renew her contract and placing her on administrative leave, thereby
27
immediately removing her from office in a move that became permanent
after March 31, 2011.9 Thus, the City explicitly violated Section 2-2 of the
Charter, just as Gallant pled in her complaint.
The City argued in the Superior Court that Gallant was not the City
Manager as that term is used in Charter Section 2-2(A) because her Interim
City Manager contract made clear that hers was a temporary "caretaker"
position. (Tab 48,3 JA 699-700.) Thus, according to the City, Section 2-
2' s rules regarding the "City Manager" bore no relevance to Gallant - that
provision only applied to a 'permanent' City Manager not appointed under
a potentially time-limited contract. (Tab 48, 3 JA 699-700.) In fact, the
City argued that during the period Gallant was employed as Interim City
Manager, there was no City Manager within the meaning of the Charter.
(Tab 48,3 JA 699.) As mentioned above, the Superior Court agreed with
this position in the portion of its order denying both Gallant's declaratory
relief and breach of contract claims, stating that the Charter only protected
the City Manager, and that Gallant was not that because of her Interim
status.
Again, this contention is altogether irreconcilable with Section
5(B)(1) of the contract stating that "Section 2-2(A)" of the Charter
conferred authority upon the City Council to appoint Gallant. Any contrary
argument is nonsensical. If the City's (and the Superior Court's) framing
of this issue were correct, the City Council would be empowered to invoke
its specific appointment authority for the three positions created by Section
2-2 whilst selectively proclaiming the same section's rules inapplicable and
9 Again, the City had to take action if it wished to temporarily or permanently remove Gallant from the Interim City Manager position due to the language in her employment contract. By voting to let the contract lapse 93 days later, the Council voted to both immediately and prospectively remove Gallant, the "incumbent," from the City Manager's Office.
28
without effect so long as the City Council slaps an "Interim" (or
"caretaker~~) tag on the City Manager, City Attorney or City Clerk's job
title.
This is a blatantly flawed construction of the Charter's provisions
which obviates the fact that a "charter represents the supreme law" of a
charter city such as Alameda, subservient only to the U.S. and California
Constitutions or preemptive state and federal laws. (JJamar Electric, Inc. v.
City a/Las Angeles (1994) 9 Ca1.4th 161, 170.) Such an interpretation
would also violate the principle that it is "well settled that a charter city
may not act in conflict with its charter", rendering any act "violative or not
in compliance with the charter" null and void. (Jd. at 171.) This is true
here because by appointing any person to one of those three positions listed
in Section 2-2(A), the City Council is then bound to follow the provisions
in Section 2_2(B).10 There is absolutely no other plausible outcome given
the unambiguous language of Section 2-2(A).
Simply put, the Charter imbues the City Council with explicit
powers, including the authority to appoint a City Manager under Section 2-
2(A). If the City Council wishes to enter an employment contract with that
10 In its Reply to Gallant's anti-SLAPP motion Opposition, the City argued that Damar Electric actually supported the City's position, by quoting the following passages: "Charter provisions are construed in favor of the exercise of the power over municipal affairs and 'against the existence of any limitation or restriction thereon which is not expressly stated in the charter ... '" and "Thus, [r]estrictions on a charter city's power may not be implied." (Tab 50, 3 JA 735.). This language does nothing to undermine Gallant's position. Section 2-2(A) explicitly limits the City Council's ability to appoint "incumbents" to three positions, one of which is City Manager. Any "incumbent" City Manager cannot be removed or suspended, immediately or prospectively, by the City Council within 90 days of a new member being appointed. This is a "limitation or restriction ... expressly stated in the charter", not an implied restriction. There is simply no 'implied restriction' issue in this fact as the City so strenuously argued in the trial court.
29
person and place an "Interim" label on their job title, nothing prevents them
from doing that; such an action is in keeping with the City's plenary powers
of appointment under California Constitution Article XI, Section 5
(discussed at length below) because doing so does not inherently conflict
with any provision or language in the Charter.
But the City Council has absolutely no authority to contract around
and act in contravention to Section 2-2(B)'s removal, suspension and
termination restrictions when it has explicitly appointed a City Manager
pursuant to Section 2-2(A). This would constitute an "act in conflict with
the charter" and thus clearly be without legal effect under longstanding
doctrines of municipal law. The unambiguous language of Section 2-2
required the City Council to follow its provisions when ending Gallant's
employment as Interim City Manager or suspending her from that position.
The City Council failed to do this, and thus violated the Charter.
B. Applying The Charter To Gallant's Interim City Manager Contract Does Not Conflict With The California Constitution.
The City further argued in its anti-SLAPP pleadings that interpreting
the Charter as applying to Gallant's employment contract was "absurd" and
that such a construction conflicts with Article XI, Section 5 of the
California Constitution. 11 (Tab 48, 3 JA 700.) Specifically, the City
insisted that the City Council validly appointed Gallant as Interim City
Manager under its plenary constitutional powers of appointment pursuant to
Article XI, Section 5 without implicating the explicit commands of Section
2-2(A)- a fanciful application of what is colloquially known as
"the home rule doctrine".12 (Tab 48, 3 JA 690-691.)
11 The Superior Court did not provide its reasons for finding that Gallant's status as Interim City Manager precluded application of the Charter to her contract. Rather, Judge True simply stated that "She was not permanent and therefore was not covered."
30
According to the City's anti-SLAPP pleadings, the highlighted
language in Footnote 12 offers conclusive proof that application of the
Charter to Gallant's employment contract would be in conflict with the
Constitution. This is simply not the case. As conceded above, the City
Council was perfectly able under its Charter-granted authority to enter a
contract with Gallant naming her City Manager for a potentially time
limited period. However, the authority to appoint Gallant to that position,
as evidenced by the contract's own words, arose from Section 2-2(A) of the
Charter, meaning that Gallant was the "City Managee' for purposes of
Charter construction. The "restrictions and limitations provided" in the
Charter allow for no other conclusion.
Nothing about this plain fact raises a Constitutional issue. By
including specific instructions in the Charter regarding how to hire and fire
the City Manager, the City long ago created a "competent" charter and in
doing so exercised its "plenary authority ... to provide therein or by
amendment thereto, the manner in which ... the several municipal officers
and employees whose compensation is paid by the city shall be elected or
12 Article XI, Section 5 of the California Constitution provides in relevant part:
(a) It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws ...
(b) It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force (2) subgovernment in all or part of a city (3) conduct of city elections and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation. . .. (Emphasis added)
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appointed." (Cal.Const.Art. XI, § 5(a), (b).) (Emphasis added.)13 The
City's anti-SLAPP position that the Charter could not have applied to
Gallant's contract is tantamount to claiming that the Constitution's 'plenary
power of appointment' language permits the City to directly contravene the
Charter's explicit terms when it is deemed necessary to do so. This notion
is utterly false and no constitutional conflict arises by reading the Charter's
provisions into Gallant's contract.
For every foregoing reason oflaw and fact, the Superior Court's
determination that the Charter was inapplicable to Gallant's employment
because she was the Interim City Manager was entirely incorrect. The
freely bargained contract between Gallant and the City conclusively
demonstrates that Gallant was the City Manager within the meaning of
Section 2-2 of the Charter. Additionally, there is absolutely no
Constitutional conflict in the determination that the City Council was bound
by the charter in terminating Gallant's contract. The Superior Court's
ruling on this point must be reversed.
IV.
GALLANT INTRODUCED SUFFICIENT EVIDENCE TO PREVAIL ON EACH AND EVERY CAUSE OF ACTION LISTED IN
THE COMPLAINT
As mentioned earlier, Gallant's complaint against the City listed four
causes of action. None of these claims for relief were fully adjudicated by
the Superior Court, due to the twin determinations that (1) Gallant's
contract was not terminated, and (2) that the City Charter was inapplicable
13 The City also stated, rather oddly, in its anti-SLAPP motion that "Nothing in ... the City Charter ... purports to preempt the Council's" ability to exercise a plenary power of appointment, "nor could it, as a constitutional matter, under Article XI, Section 5(b)." (Tab 48,3 JA 691.) Given that Article XI, Section 5 allows for "all city charters" to provide a mechanism "therein" for a charter city to exercise plenary authority over municipal affairs, the City's contention here is clearly misguided.
32
to Gallant's employment status as Interim City Manager, thus precluding an
in-depth analysis on the merits of Gallant's four causes of action. (Tab 51,
3 JA 737-750.) However, Gallant was in fact terminated and Section 2-2 of
the Charter unquestionably applied to her employment status as Interim
City Manager, meaning the Superior Court should have engaged in a fact
driven analysis of her claims' legal viability. Had it done so, the evidence
at hand would have demonstrated Gallant possessed a reasonable
probability of success on the merits for each claim.
The 'reasonable probability of success' prong of the anti-SLAPP
statute merely requires a plaintiff to demonstrate that her complaint has
minimal merit. (Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon
Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1299.)14
Accordingly, an anti-SLAPP motion should not be considered a vehicle for
testing the strength of a plaintiff s overall case, nor for testing the ability of
the plaintiff at such a drastically early stage in litigation to corroborate each
and every theory of damages connected to the plaintiff s claims. (Wilbanks
v. Wolk (2004) 121 Cal.App.4th 883.) Rather, an anti-SLAPP motion to
strike under is a vehicle for determining whether a plaintiff, through a
showing of minimal merit, has stated and corroborated a legally sufficient
claim. (Id.)
A SLAPP plaintiff demonstrates minimal merit by stating and
substantiating "a legally sufficient claim." (Taus v. Loftus (2007) 40
Ca1.4th 683, 713.) This requires the plaintiff to show that a complaint is
both "legally sufficient and supported by a prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff is
credited." (Id. at 713-714) To do so, the SLAPP plaintiff must sufficiently
14 "As our emerging anti-SLAPP jurisprudence makes plain, the statute poses no obstacle to suits that possess minimal merit." (Navellier v. Sletten (2002) 29 Ca1.4th 82, 93.)
33
support his or her position by citing to "evidence of specific facts in the
form of affidavits, or admissible discovery material, in support of its
contention that the dispute exists." (Nesson v. Northern Inyo County Local
Hosp. Dist. (2012) 204 Cal.AppAth 65, 77.) Evidence submitted by a
defendant bringing an anti-SLAPP motion is considered merely to
determine if it defeats a plaintiff's claims as a matter of law by establishing
a defense or the absence of a necessary element. (Ross v. Kish (2006) 145
Cal.AppAth 188.) Further, in considering the evidence submitted to
support or oppose anti-SLAPP pleadings, the court must accept as true the
evidence favorable to the plaintiff. (Soukup v. Law Offices of Herbert Haftf
(2006) 39 Ca1.4th 260,291.)
Gallant clearly met this permissive standard on each cause of action,
as will be demonstrated below. Thus, in light of the fact that Gallant was
terminated and Section 2-2 of the Charter applied to her employment
relationship with the City, the Court should not only reverse Judge True
based on those two realities, but also remand this case back to the Superior
Court for further proceedings in accordance with the instructions that
Gallant met her burden under the anti-SLAPP statute to demonstrate a
reasonable probability of success on each cause of action.
A. The City's Violation of Labor Code Sections 1102.5(b) & (c)
Gallant's First and Second Causes of Action against the City were
for violation of Labor Code section 1102.5(b) & (c) (hereinafter "section
1102.5,,).15 Section 1102.5, known as California's "Workplace
Whistleblower Statute", is designed to encourage "workplace whistle
blowers to report unlawful acts without fearing retaliation." (Edgerly v.
City of Oakland (2012) 211 Cal.AppAth 1191, 1199, quoting Hansen v.
15 As Gallant stated claims for relief pursuant to both section 1102.5(b) & (c), "section 11 02.5(b)" and "section 11 02.5( c)" will be used to distinguish between these two subsections.
34
Department of Corrections & Rehabilitation (2008) 171 Cal.AppAth 1537,
1545-1546.)
Section 1102. 5(b) provides:
"An employer may not retaliate against an employee disclosing information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation."
Section 1102.5(c) states:
"An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a regulation. "
Protected employees under this statute include "any individual
employed by the state or any subdivision thereof, any county, city, city and
county, including any charter city[.]" (Cal.Lab.Code § 1106.) However,
unlike persons employed in the private sector, a government employee
listed in section 1106 "does not need to inform another governmental
agency of the unlawful acts in order to qualify for whistleblower protection.
(Edgerly v. City of Oakland, supra, 211 Cal.AppAth at 1199. ) (emphasis
added.) Rather, a person employed by a governmental agency must merely
report the alleged legal violations to another person, even one who is
employed by the same entity or agency. (Colores v. Board of Trustees
(2003) 105 Cal.AppAth 1293, 1312-1313.)16
16 Gallant met this requirement by reporting what she believed constituted Tam's Brown Act violations to Highsmith, as Highsmith was a government employee (the City Attorney) working for the same organization who Gallant "had every reason to expect. .. would conduct an investigation into the matter ... " (Colores v. Board of Directors, supra, 105 Cal.AppAth at pp.1312-1313.)
35
Further, section 1102.5 is a 'public protection' statute, meaning it
must be broadly construed in favor of a plaintiff alleging it was violated.
(See McVeigh v. Recology San Francisco (2013) 213 Cal.AppAth, 443, 471
- "Labor Code section 1102.5 ... should be given a broad construction
commensurate with its broad purpose.") The California Supreme Court has
held that section 1102.5 reflects "the broad public policy interest in
encouraging workplace whistle-blowers to report unlawful acts without
fearing retaliation." (Green v. Ralee Engineering Co. (1998) 19 Ca1.4th 66,
67.) Further, "[C]ivil statutes for the protection of the public are broadly
construed in favor ofthat protective purpose. [Citations]" (People ex reI.
Lungren v. Superior Court (1996) 14 Ca1.4th 294,313.) Accordingly,
Gallant was entitled to have the Superior Court broadly construe section
1102.5 in her favor when analyzing both of her Labor Code claims.
1. Section 1102.5(b)
Gallant alleged that she was terminated and retaliated against
because she "refused to participate in illegal activity; and ... disclosed
information pertaining to illegal activity to government agencies." (Tab 1,
1 JA 2.) Specifically, Gallant alleged that Tam violated the Brown Act,
Government Code sections 3060-3075, sections of the Alameda Charter,
and Article I, Section I of the California Constitution. I7 Gallant
reported Tam's actions, which she reasonably believed constituted Brown
Act violations, to Highsmith, who then directed Gallant to contact
Colantuano. Gallant then alleged that, after Colantuano's investigation,
subsequent report and the Alameda County District Attorney's refusal to
prosecute or further investigate Tam, both Tam and Gilmore engaged in a
17 In 2012, this Court decided Edgerly v. City of Oakland, supra, 211 Cal.AppAth at p. 1199, stating in that a charter city employee cannot sue that city for retaliation under Labor Code section 1102.5 when the retaliation is premised on the employee reporting alleged violations of a city charter.
36
series of coordinated attacks on Gallant, culminating in her termination
when the City Council voted her out.
"To prove a cause of action under section 1102.5, the plaintiff must
establish a prima facie case of retaliation." (Edgerly v. City a/Oakland,
supra, 211 Cal.AppAth at p. 1199; citing Mokler v. County a/Orange
(2007) 157 Cal.AppA 121, 138.) To do this, the plaintiff must show that
(1) she engaged in protected activity, (2) her employer subjected her to an
adverse employment action, and (3) there is a causal link between the two.
(Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.AppAth
1378, 1384.)
Gallant clearly did this. Gallant not only established that she was
suspended for the duration of her Interim City Manager contract, she also
established being terminated by the City Council's December 28,2010
vote. Both suspension (in the form of mandatory leave) and termination
constitute adverse employment actions. (For suspension as adverse action,
see George v. California Unemployment Ins. Appeals Bd. (2009) 179
Cal.AppAth 1475, 1487-1488; for termination, see Stokes v. Dole Nut Co.
(1995) 41 Cal.AppAth 285.)
Further, Gallant conclusively demonstrated having engaged in
protected activity. She reported to Highsmith her reasonable belief that
Councilmember Tam was surreptitiously and repeatedly violating the
Brown Act, a California statute. I8 (See Gardenhire v. Housing Authority
18 Gallant discovering that SunCal and IAPF representatives were privy to information discussed in closed Council sessions gave her reasonable belief that the Brown Act language discussed in Footnotes 3 and 4 was being violated. Tam's emails contained information learned in closed session meetings to unauthorized, outside parties and initiated email chains on multiple occasions to two or more Councilmembers, constituting a "majority", discussing matters within the Council's jurisdiction in a forum not "authorized" by the Brown Act. Thus, by discovering certain of Tam's emails, Gallant became reasonably concerned that Sections 54952.2 and
37
(2000) 85 Cal.AppAth 234, 242; public employees reporting illegal
activities to their own employer are protected by section 1102.5.) Further,
Gallant, along with Highsmith, contacted Colantuano who was later
retained by the City to investigate Tam's activities and present his findings
to the District Attorney.
Finally, Gallant was able to establish a causal link between her
suspension and termination and her disclosures to Highsmith. After both
notifying the City Council of Colantuono's investigation and the
subsequent publication ofColantuano's report and the District Attorney
declining to prosecute Tam for violating the Brown Act, Gallant suffered
immediate repercussions. She established that Gilmore and in particular
Tam turned immediately and publicly against her, with Tam stating in a
City Council meeting "[a]s everyone knows I have some serious issues with
the City Manager and intend on dealing with these issues in her
performance evaluation which is the appropriate forum."
Tam also held a public press conference demanding Gallant's
immediate resignation, stating "I have been the victim of an attack because
I dared to question the motives of the City Manager", "I am asking for the
resignation of the Interim City Manager" and "Ann Marie Gallant must be
held accountable." Gallant further established that both Gilmore and Tam
stopped communicating with her as soon as the Council was notified of
Colantuano's investigation and refused to meet with her whilst also
engaging in public displays of rudeness. She was placed on administrative
leave, expelled from her workplace and terminated.
54963 of the Brown Act were being violated. The reasonableness of Gallant's belief is further bolstered by the fact that Colantuano, a highly experienced local government lawyer, corroborated Gallant's concerns and forcefully concluded that Tam engaged in large scale Brown Act violations.
38
Broadly construed, this "series of acts on [Tam/Gilmore]' s part -
proceeding in linear fashion" from Gallant's initial disclosures to
Highsmith, continuing through the Colantuono investigation and
culminating in her termination as Interim City Manager demonstrated the
necessary causal link between Gallant's protected activities and the adverse
employment actions she suffered - namely suspension and termination.
(Patten v. Grant Joint Union High School Dist., supra, 134 Cal.AppAth at
p. 1390.) This conclusion is bolstered by the fact that "there is no
requirement that an employer's retaliatory acts constitute one swift blow,
rather than a series of subtle, yet damaging, injuries[.]" (Yanowitz v.
L 'oreal USA, Inc. (2005) 36 Ca1.4th 1028, 1055.) Here, the months-long
series of "subtle, yet damaging" acts taken by Tam and Gilmore,
commenced immediately after the City Council learned of Colantuono's
investigation and ending with Gallant's termination, provide the necessary
causal link between these adverse actions and Gallant's protected activity.
Thus, Gallant established a reasonable probability of success on her
section 1102.5(b) claim by unequivocally demonstrating a prima facie case
of discrimination. Accordingly, she has demonstrated that this cause of
action contains the "minimal merit" required to defeat an anti-SLAPP
motion.
2. Section 1l02.5(c)
Like the section 11 02.5(b) claim, Gallant was required to state a
prima facie case of retaliation. (Edgerly v. City of Oakland, supra, 211
Cal.AppAth at p. 1199.) As demonstrated above, Gallant made this
demonstration. Further, pursuant to the plain language to section 1102.5(c),
to be successful on this cause of action Gallant would have had to show
that, had she done nothing in response to learning of Tam's activities which
triggered her reporting to Highsmith, she reasonably believed she would
39
have been participating in an activity likely to result in a violation of a state
or federal statute. (Cal.Lab.Code § 1102.5(c).)
Stated in Footnote 18 above, Gallant's belief that Tam's activities
and conduct constituted Brown Act violations was subjectively reasonable.
Thus, had she failed to do anything in response to learning of Tam's
actions, Gallant would have been a passive participant by way of omission
to act in a continuing set of actions she possessed a good faith and
circumstantially reasonable belief violated the Brown Act. She also would
have been violating her duties as City Manager under Section 7 of the
Charter to "enforce all laws" and investigate potential misconduct of City
officers. (Tab 12, 1 JA 117-118.) Accordingly, she reported Tam to
Highsmith, leading to Colantuano's investigation and report and providing
the eventual impetus for the City Council's 3-2 termination vote.
Thus, pursuant to the meaning of section 11 02.5( c), Gallant
established a prima facie case that she was retaliated against for refusing to
participate in what she reasonably believed constituted activity in violation
of California law. Accordingly, her cause of action under section
11 02.5( c), construed broadly, possesses "minimal merit" and the reasonable
chance of success necessary to defeat an anti-SLAPP motion.
B. Gallant's Declaratory Relief Claim
Gallant's third cause of action was for declaratory relief.
Specifically, Gallant sought a declaration from the Superior Court that, by
moving to terminate her employment contract as Interim City Manager on
December 28,2010, the City Council violated Section 2-2 of the Charter.
(Tab 51, 3 JA 738.) As an actual dispute and controversy existed between
Gallant and the City on this contention, Gallant requested a judicial
declaration allowing the parties to ascertain "whether the December 28,
2010 vote may be lawfully enforced against the plaintiff." The Superior
40
Court held that, as the Charter purportedly was inapplicable to Gallant's
contract, declaratory relief was unwarranted. (Tab 51, 3 JA 749.)
Gallant was clearly entitled to such a declaration. "Any person
interested under a written instrument. .. may, in cases of actual controversy
relating to the legal rights and duties of the respective parties, bring an
original action or cross-complaint in the superior court for a declaration of
his or her rights or duties ... arising under the instrument or contract."
(Cal. Code Civ.Proc. § 1060.) "The declaration may be either affirmative or
negative in form and effect, and the declaration shall have the force of a
final judgment." (Jd.)
The instrument at issue under which Gallant seeks a declaration of
her rights is Section 2-2 of the Charter. As demonstrated extensively
above, the Charter generally, and Section 2-2 specifically, applied to and
governed Gallant's employment contract. Section 2-2 barred the City
Council from taking any action to suspend or remove Gallant within ninety
days of Bonta's installation as a City Councilmember, yet it did so within
seven days. Thus, Gallant is clearly entitled to a judicial declaration stating
she was fully protected under Section 2-2 of the Charter and that her
suspension and termination were done in violation of that section. This
cause of action should not have been dismissed and the Superior Court
should be reversed on this point. The Court should remand this cause of
action to the Superior Court with appropriate instruction for further
proceedings.
C. Gallant's Breach of Contract Claim
Gallant's final cause of action was for breach of contract, with
Gallant specifically alleging that, because the City's December 28,2010
resolution was void as a matter oflaw, the December 29,2010 letter sent by
Marie Gilmore did not validly provide Gallant with 90-day written notice
that her contract was being terminated as Section 2 ofthe employment
41
contract requires. Thus, when the City stopped paying Gallant her salary
on April 1, 2011, it breached her employment contract. Given the City
Council's clear violation of Section 2-2 and the Brown Act in terminating
Gallant's employment, it cannot reasonably be questioned that the letter
sent to Gallant the next day informing her of the Council's vote did not
constitute legally effective 90-day notice.
However, the Superior Court determined that "[Gallant's] breach of
contract cause of action, incorporating as it does Section 2-2 of the City
Charter, must fail." At a minimum, this finding is patently erroneous and
should be reversed and remanded to the Superior Court for further
proceedings because Section 2-2 clearly governed Gallant's employment
contract. This being the only stated ground upon which the Superior Court
rejected Gallant's breach of contract claim, the Superior Court must be
reversed.
Yet this Court should also find that Gallant established a reasonable
probability of succeeding on the merits of this claim, thereby defeating
application of the anti-SLAPP statute. The December 29,2010 letter is the
only written material Gallant ever received from the City notifying her that
her contract was being terminated. Yet because Section 2-2 rendered the
previous day's vote to suspend her and terminate her contract ineffective as
a matter of law (because the vote was made within 90 days of the swearing
in of a new Councilmember), Gallant has never been provided with
adequate written notice by the City that her contract or employment was
being terminated. Under either possibly applicable section of her contract
(Sections 2 and 5, respectively), valid 90-day notice is a prerequisite to
ending Gallant's tenure as Interim City Manager. The City never provided
this, thus Gallant's contract was never effectively or lawfully terminated.
The vote to terminate Gallant was also void based on the City failing
to provide Gallant with 24-hour notice of the December 28,2010 closed-
42
session meeting where her contract was terminated. (Tab 17,2 JA 235 ,-r
17.) The agenda item for this meeting lists the Council's discussion of
Gallant's contract as "PUBLIC EMPLOYEE DISCIPLINE I DISMISSAL I
RELEASE" conducted pursuant to "Gov. Code Section 54597(b)". (Tab
13,1 JA 183.) This statute, part of the Brown Act, provides
"[ a]s 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 ... 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 ... shall be null and void."
(Cal. Gov. Code § 54957(b)(2).) (Emphasis added.)
Therefore, the Brown Act required the City Council to provide
Gallant with written notice that her employment contract would be put to a
vote in a closed session on December 28,2010. It failed to do this, thus
rendering the 3-2 termination vote null and void. By failing to notify
Gallant of this closed-session, the termination vote was ineffective as a
matter of law. This again means the City Council never effectively voted to
terminate (or 'not renew' as the City would characterize it) Gallant's
contract and Gallant was also never notified of this vote in a legally
effective manner.
As this is the case, the City clearly breached its contractual
obligations when it stopped paying Gallant after April 1, 2011 because
without validly voting to not renew Gallant's contract and notifying her of
that fact, Gallant's contract automatically renewed every 90 days until valid
notice of non-renewal was provided. That never happened. Thus, there can
be no reasonable dispute that the evidence submitted in the Superior Court
establishes that Gallant's breach of contract claim was meritorious and
would have prevailed but for the incorrect application of the anti-SLAPP
statute in dismissing it.
43
Accordingly, this Court should remand this cause of action to the
trial court with instructions that Gallant met her burden of demonstrating a
reasonable probability of success on the merits, allowing the case to further
proceed in the Superior Court.
CONCLUSION
The Superior Court erred dramatically in granting the City's anti
SLAPP motion. The misinterpretation of facts and misapplication of law
argued by the City and unfortunately adopted as the cement of the Superior
Court's ruling must not be allowed by this Court to form the intractable
concrete of injustice. Gallant was terminated by the City in violation of
Charter Section 2-2, which applied with full force and effect to all aspects
of Gallant's employment as Interim City Manager. These realities alone
mandate reversal of the Superior Court's entire ruling, as Gallant's
Complaint was struck pursuant to the anti-SLAPP statute on those two
grounds alone. However, as demonstrated here, Gallant has shown that the
Complaint's four causes of action each possessed "minimal merit", thus the
City's anti-SLAPP motion should have been denied. This Court should
reverse and remand accordingly.
Respectfully submitted,
August 11,2014 STONE & GRA YES
By:b'~~-Dan Katibah Attorneys F or Appellant ANN MARIE GALLANT
44
CERTIFICATION OF WORD COUNT (California Rules of Court, Rule 8.204(c)(1).)
This brief consists of 13,480 words of text, inclusive of footnotes, as counted by
Microsoft Office Word, the program used to generate the brief.
August 11,2014
D~ v:::-~===~ Dan Katibah, SBN 293251
45
APP-009
PROOF OF SERVICE (Court of Appeal) FOR COURT USE ONL Y
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Case Name: Gallant v. City of Alameda
Court of Appeal Case Number: A141508
Superior Court Case Number: RGl1590505
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(Court of Appeal) Gallant, Ann Marie
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(3) Person served:
(a) Name:
(b) Address where delivered:
(c) Date delivered:
(d) Time delivered:
APP-009
o Names and addresses of additional persons served and delivery dates and times are listed on the attached page (write ''APP-009, Item 3b" at the top of the page).
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: 8 /11 /2 0 14
Deseree Gamayo (TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM)
APP-009 [New January 1, 2009] PROOF OF SERVICE
(Court of Appeal) Gallant, Ann Marie
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