Ana Guadalupe Garcia vs. Santa Barbara City College, et al

Case Number

24CV06363

Case Type

Hearing Date / Time

Mon, 07/21/2025 - 10:00

Nature of Proceedings

Special Motion To Strike Portions Of Plaintiff’s Complaint

Tentative Ruling

Ana Guadalupe Garcia vs. Santa Barbara City College, et al.  

Case No. 24CV06363

           

Hearing Date: July 21, 2025                                                    

HEARING:              Special Motion To Strike Portions Of Plaintiff’s Complaint

                                                           

ATTORNEYS:        For Plaintiff Ana Guadalupe Garcia: Peggy A. Farrell, Law Office Of Peggy A. Farrell APC

For Defendants Santa Barbara City College, Veronica Gallardo, Sabrina Barajas, Jennifer Hamilton, Paloma Arnold, Christina Llerena, and Rebecca Robertson: Thomas M. Madruga, David Adida, Olivarez Madruga Law Organization, LLP

TENTATIVE RULING:

(1) For all reasons discussed herein, the special motion of defendants Santa Barbara City College, Jennifer Hamilton, Paloma Arnold, Christina Llerena, and Rebecca Robertson to strike portions of plaintiff’s complaint is granted, in part as to the seventh cause of action alleged in the complaint only, in accordance with this ruling.

(2) For all reasons discussed herein, defendants shall, on or before August 20, 2025, file and serve a response to the first amended complaint filed by plaintiff on July 8, 2025.

Background:

On November 13, 2024, plaintiff Ana Guadalupe Garcia (Garcia) filed a complaint against defendants Santa Barbara City College (SBCC), Veronica Gallardo (Gallardo), Sabrina Barajas (Barajas), Jennifer Hamilton (Hamilton), Paloma Arnold (Arnold), Christina Llerena (Llerena), and Rebecca Robertson (Robertson) (collectively, defendants). As alleged in the complaint:

Garcia is a 36-year-old Hispanic woman and an experienced counselor with a master’s degree from California Lutheran University.(Compl., ¶ 16.) In March 2017, Garcia was hired by SBCC to work as a Counselor. (Ibid.) In 2021, Garcia was elected as Vice President of the Academic Senate. (Ibid.) Each of these positions were part-time and hourly. (Ibid.)

On October 12 and 19, 2022, Garcia defended the Umoja program, which provides resources dedicated to enhancing the cultural and educational experiences of African-American/Black students, against attacks from counselors and representatives of the Academic Counselor Center who did not want to provide needed resources and personnel for the program. (Compl., ¶ 18.) In response to Garcia’s advocacy, Barajas opposed hiring personnel for the Umoja program and behaved with a hostile attitude toward Garcia. (Ibid.)

The type of response to Garcia’s social justice advocacy described above was not an unusual circumstance. (Compl., ¶ 18.) In response to Garcia’s prior public demands for equity programming, Gallardo repeatedly stated her opposition and publicly and privately chastised Garcia for trying to promote equity programming. (Id. at ¶ 19.)

Notwithstanding the objections by Barajas described above, three counselor positions, including one specific to the Umoja program, were advertised in February 2023. (Compl., ¶ 20.) The following qualifications were sought: (1) Has experience or has demonstrated commitment to teaching, mentoring, or engaging in services for Black and Brown students; (2) Has demonstrated knowledge of barriers for Black and Brown students and experience in addressing disproportionate impact at an institution; and (3) Has experience or demonstrated commitment to integrating elements of culturally relevant and inclusive pedagogy SBCC has reserved the following tenure-track faculty positions to seek faculty with the expertise to lead our institution in serving Black and Brown students. (Id. at ¶ 21.)

The job posting for the counselor positions described above also emphasized that in 2009, SBCC was designated as an “Hispanic- Serving Institution,” and described the ideal candidate as someone who would “demonstrate a commitment to join a department that is dedicated to the use of curriculum and pedagogy that shares SBCC’s commitment to educating its racially and socioeconomically diverse post-traditional student population.” (Compl., ¶ 22.) The ability to speak Spanish was also a desired qualification. (Ibid.)

Though Garcia did not apply for the Umoja-specific position, Garcia did apply for the two general academic counselor positions. (Compl., ¶ 21.) On April 17, 2023, Garcia learned that she was not selected for an interview for either position even though she was the most qualified. (Id. at ¶ 23.) The reason given for not selecting Garcia was that the positions were “very competitive.” (Id. at ¶ 25.) Human Resources informed Garcia the hiring process “had one of the largest candidate pools” and “number of internal candidates.” (Ibid.) This was not the true reason because almost every internal employee that applied with at least a few years of academic counseling experience received an interview. (Id. at ¶ 26.)

Llerena and Hamilton led the “hiring committee” which was set up atypically. (Compl., ¶ 24.) Instead of having the entire Counseling Department decide who would be considered for the job openings, a separate committee of employees was charged with selecting candidates for interview and hire. (Ibid.) Garcia became aware through Llerena that she was not selected for an interview because of “bias” on the hiring committee against Garcia. (Id. at ¶ 26.) Hamilton ranked Garcia the lowest possible score which had no legitimate basis. (Ibid.)

Ultimately, the committee filled the two counseling positions with an internal, non-Spanish speaking Latina employee and an external White male employee who was unilaterally selected outside of an appropriate hiring process after the initial search failed to result in the two openings being filled by qualified candidates. (Compl., ¶ 27.) None of the candidates selected for interview or subsequently hired had the knowledge, expertise and commitment to students of color, diversity or anti-bias compared to Garcia. (Id. at ¶ 23.)

On April 27, 2023, Garcia made a written complaint of discrimination and retaliation to SBCC’s Human Resources and Llerena, setting forth her belief that she was denied the opportunity to be considered for the two counseling positions because of the illegal bias the hiring committed held against her and in retaliation for being a “squeaky wheel” when it came to advocating for the rights of underrepresented and under-resourced students. (Compl., ¶¶ 28-29.) It was at this point that Llerena began her trajectory of unlawful conduct toward Garcia. (Id. at ¶ 28.)

On May 10, 2023, Garcia, who was up for reelection for the Academic Senate, attended a regularly scheduled Academic Senate meeting which was public and live streamed, and where Garcia was subjected to further retaliation for making verbal and written complaints of discrimination involving equity programing. (Compl., ¶ 30.) Instead of a generalized process for election, there was an orchestrated charge to prevent Garcia from running at all by unilaterally changing the eligibility rules to limit consideration to employees with full-time status only, which is an unprecedented qualification. (Ibid.) Due to this most recent show of hostility toward Garcia, Garcia was compelled to resign from the Academic Senate. (Id. at ¶ 31.)

Gallardo’s animus towards Garcia for repeatedly asserting the rights of Black and Brown students to equal access of services and programming ultimately drove Gallardo to falsely accuse Garcia of “creating a hostile work environment” during an SBCC Board of Trustees meeting on July 20, 2023, which was also public and live-streamed. (Compl., ¶ 32.) Gallardo also demanded that the Interim President of SBCC, Kindred Murrillo, “fire or take care of [Ms. Garcia.]” (Ibid.)

On July 22, 2023, after learning about Gallardo’s accusations and public demands to terminate Garcia, Garcia emailed Human Resources again, reported additional details for why she believed there was “bias or retaliation” against her by members on the hiring committee, and requested additional information about criteria used and legitimate reasons for the failure to select her for interview. (Compl., ¶ 33.) Garcia’s email went unanswered. (Id. at ¶ 34.)

On August 10, 2023, Garcia followed up regarding her complaints and request for information stating: “If you are not the person to reach out to, please advise who that should be. I am still looking for more data on what specifically was missing from my materials and have more concerns about retaliation considering the information that I learned today. I have just become aware of the fact that the job was offered and declined by a candidate who was approved by the board, Melissa Garcia, therefore completing the search with one failed position. Then the job was offered to a candidate who had presumably been rejected without re-posting it. This is atypical and concerning. I will be filing a complaint with the Chancellors Office.” (Compl., ¶ 35.) SBCC continued to ignore Garcia’s concerns, complaints, and requests. (Id. at ¶ 36.)

Garcia filed a formal complaint of discrimination with the California Community Colleges Chancellors Office (CCCCO). (Compl., ¶ 36.) On August 11, 2023, Garcia’s complaint was rejected by the Executive Office of the CCCCO, on the grounds of jurisdiction with reference to other public agencies. (Id. at ¶ 37.)

In February of 2024, Garcia experienced hostility and retaliation by Llerena, Robertson, and Arnold. (Compl., ¶ 38.) In the summer of 2024, Garcia’s assignment was drastically reduced to the contractual minimum of 3 “TLUs”, when in previous summers Garcia had worked without exception between 8-12 TLUs. (Id. at ¶ 39.) In addition, Garcia was no longer allowed to oversee the Peer Mentor Program, which caused significant wage loss, and was left out of processes Garcia typically leads, including the dismissal communication process. (Ibid.) The escalation of hostility and retaliation caused Garcia to seek medical leave to address medical and mental health issues and to get some reprieve from her workplace. (Ibid.)

On May 1, 2024, a notice was sent to Garcia stating that SBCC would be engaging an external firm to lead the investigation of Garcia’s complaints. (Compl., ¶ 40.) On October 31, 2024, a Determination Letter and Investigation Report were provided to Garcia, confirming there was bias against her that was not related to protected categories. (Ibid.) That report failed to substantiate a valid rationale for the bias that was found in the hiring process, and documented Arnold’s, Llerena’s, and Robertson’s continued attempts to defame and libel Garcia. (Ibid.)

The complaint alleges nine causes of action against each defendant: (1) Labor Code section 232.5; (2) retaliation (Lab. Code, §§ 98.6 & 1102.5); (3) unlawful retaliation (Gov. Code, § 12940 et seq.); (4) unlawful discrimination and harassment (Gov. Code, § 12940 et seq.); (5) failure to prevent (Gov. Code, § 12940 et seq.); (6) failure to investigate (Gov. Code, 12940 et seq.); (7) defamation (Civ. Code, §§ 43-45a); (8) negligent infliction of emotional distress; and (9) intentional infliction of emotional distress.

On January 29, 2025, SBCC, Hamilton, Arnold, Llerena, and Robertson (collectively, the SBCC defendants) filed a motion for an order striking all causes of action alleged in the complaint on the grounds that the conduct which is the subject of Garcia’s claim constitutes protected conduct on a matter of public interest within the meaning of Code of Civil Procedure section 425.16, and that Garcia is not likely to prevail on the merits of the causes of action alleged in the complaint. The SBCC defendants also request an award of reasonable attorney’s fees.

On February 24, 2025, Barajas and Gallardo filed a joinder to the motion of the SBCC defendants.

Court records reflect that during a case management conference held in this action on March 17, 2025, Garcia requested that the court continue the hearing on the present motion because Garcia was trying to retain counsel to assist with the opposition. (See, e.g., Mar. 18, 2025, Notice of Ruling.) The court continued the hearing on the motion to June 23, 2025. (Mar. 17, 2025, Minute Order.)

Court records further reflect that on June 2, 2025, Garcia filed a substitution of attorney identifying her new legal representative. On June 11, 2025, the parties filed a joint stipulation to continue the hearing on the motion which the court granted. (June 11, 2025, Stip. & Order.)

On July 8, 2025, Garcia filed a first amended complaint (the FAC), alleging five causes of action against SBCC only: (1) retaliation in violation of Government Code section 12940, subdivision (h); (2) unlawful adoption and enforcement of policy preventing an employee from disclosing violations of law in violation of Labor Code section 1102.5, subdivision (a); (3) retaliation for exercise of rights in violation of Labor Code section 98.6; (4) retaliation for disclosing information reasonably believed to be a violation of state or federal statute, local, state or federal rule or regulation in violation of Labor Code section 1102.5, subdivision (b); and (5) retaliation for refusal to participate in conduct reasonably believed to be a violation of state or federal statute, local, state or federal rule or regulation in violation of Labor Code section 1102.5, subdivision (d).

The court’s records reflect that Garcia has not filed a substantive opposition to the present motion.

On July 14, 2025, the SBCC defendants filed a notice of non-opposition requesting that the court grant the motion due to Garcia’s failure to file opposition, and asserting, among other things, that Garcia’s filing of the FAC does not negate the SBCC defendants’ right to have the motion adjudicated.

Analysis:

California’s anti-SLAPP statute, codified as Code of Civil Procedure section 425.16, provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) (Note: Undesignated statutory references shall be to the Code of Civil Procedure unless otherwise indicated.) The statute “is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884 (Wilson).)

Protected activity under the statute “includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

“Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged.’ [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has ‘at least “minimal merit.” ’ [Citation.] If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).)

To meet its burden, the moving defendant must identify “all allegations of protected activity, and the claims for relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) In addition, “while courts may strike less than the entirety of a complaint or pleaded cause of action, the trial court is not required to take on the burden of identifying the allegations susceptible to a special motion to strike. If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions. This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim’s elements, the actions alleged to establish those elements, and wh[y] those actions are protected.’ [Citation.]” (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1109; see also Wilson, supra, 7 Cal.5th at p. 884 [moving defendant must “identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute”].)

“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief — each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action — to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Bonni, supra, 11 Cal.5th at p. 1010.) “[T]o the extent any acts are unprotected, the claims based on those acts will survive.” (Id. at p. 1012.)

In addition, and relevant under the circumstances present here, “[a] plaintiff ... may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint ... in response to the motion.” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477-478; see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055 (Sylmar) [“there is no express or implied right in section 425.16 to amend a pleading to avoid a SLAPP motion”]; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 [“the omission of any provision in section 425.16 for leave to amend a SLAPP complaint was not the product of inadvertence or oversight”].) Instead, the court must “consider [plaintiff’s] earlier pleadings in determining whether [the] claim ... arises out of protected activity.” (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 412.) For these reasons, and notwithstanding the filing of the FAC by Garcia, the court will determine the motion as to each of the causes of action alleged in Garcia’s original complaint which are the subject of the present motion.

First Through Sixth, Eighth, and Ninth Causes of Action:

The SBCC defendants contend that the first through sixth, eighth, and ninth causes of action alleged in the complaint each depend on the same protected conduct, which includes the SBCC defendants subjecting Garcia to a hostile work environment, defaming Garcia in public, restricting Garcia’s access to the Academic Senate, limiting Garcia’s wages and duties, and preventing Garcia from interviewing for a job, and arise from Barajas expressing a position contrary to Garcia’s position regarding the “Umoja” program described in the complaint, which, according to the SBCC defendants, is a public program. (Motion at pp. 10-12.)

The SBCC defendants further contend that any conduct and statements made in connection with decisions on personnel interviews and hiring, wages, candidacy for election to the Academic Senate, assignment of personnel tasks, and personnel hours, were in furtherance of the exercise of free speech on matters of public interest because they pertain to personnel of a public academic institution and to the quality of public education. (Motion at pp. 10-11.) In addition, the SBCC defendants argue, to the extent the first through sixth, eighth, and ninth causes of action arise from statements made online or in emails, these statements may also be considered free speech falling within the anti-SLAPP statute. (Id. at p. 11.)

The SBCC defendants also assert that, to the extent the court finds that any statements or conduct relating to the consideration of Garcia’s employment application or decisions on procedures for candidacy for the Academic Senate are not protected, this would have a chilling effect on the ability of SBCC to manage its personnel and protect against misbehavior by its employees, and would hinder SBCC from achieving its mission of providing quality education to the public.

The general and conclusory assertions advanced by the SBCC defendants are wholly insufficient to show why the entirety of the first through sixth, eighth, and ninth causes of action arise from conduct which constitutes protected activity under the anti-SLAPP statute.

Relevant under the circumstances present here, “[i]dentifying the particular adverse employment action or actions at issue defines the relevant conduct for purposes of a section 425.16 analysis.” (Verceles v. Los Angeles Unified School District (2021) 63 Cal.App.5th 776, 785 (Verceles).) Further, the court “accept[s] [Garcia’s] factual assertions as true for the purpose of resolving the defendants’ special motion to strike.” (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 754 (Laker).)

The first through sixth, eighth, and ninth causes of action of the complaint effectively allege claims for, and a failure to prevent or investigate, discrimination, retaliation, and harassment purportedly occurring in the employment context, based on conduct which Garcia alleges violates various provisions of the Labor Code, Section 12940 of the California Fair Employment and Housing Act or “FEHA”, codified as Government Code section 12900 et seq., and which caused Garcia to suffer emotional distress. A reasonable interpretation of the complaint shows that these causes of action are supported by allegations that the SBCC defendants “subject[ed] Garcia to a hostile work environment, ... restrict[ed] her access to the Academic Senate, limit[ed] her wages and duties, and prevent[ed] her from even interviewing for a job for which she was well qualified....” (Compl., ¶¶ 42, 47, 52, 57, 62, 68, 79, & 85.)

“A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).) The SBCC defendants fail to explain why the elements of the first through sixth, eighth, and ninth causes of action depend on allegations that Garcia was “defamed” during a public meeting of SBCC’s Board of Trustees. (Id. at pp. 1067-1068, fn. omitted [discussing allegations which give rise to the elements of a discrimination claim].) Instead, allegations regarding any defamation of Garcia contained in these causes of action appear to provide context for and be merely incidental to Garcia’s claims. (See Baral, supra, 1 Cal.5th at p. 394 [addressing allegations of protected activity that merely provide context but do not support the claim for recovery].)

The SBCC defendants also fail to explain why the allegations of the complaint show that the “Academic Senate” constitutes a public forum or implicates a public issue, or why the alleged actions or decisions described above constitute protected activity within the meaning of the statute “even if those decisions were made in conjunction with an official investigation.” (Verceles, supra, 63 Cal.App.5th at pp. 787-788 [also noting that the claims at issue were not based and did not depend on any communications made during an investigation]; Bishop v. The Bishop’s School (2022) 86 Cal.App.5th 893, 904-905 (Bishop)[general discussion of matters which constitute a public issue].)

In addition, to support the points advanced in the motion as to the first through sixth, eighth, and ninth causes of action, the SBCC defendants rely on the decision in Laker which addressed allegedly defamatory statements made in the context of an investigation which qualified as an official proceeding. (Laker, supra, 32 Cal.App.5th at pp. 764-765 [general discussion].) The SBCC defendants fail to explain why each of the allegations which establish the elements of the first through sixth, eighth, and ninth causes of action alleged in the complaint constitute statements allegedly made during an official proceeding authorized by law. (See City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 216-217 [general discussion].) Further, “the mere fact” that SBCC is a public academic institution “does not, without more, make a proceeding ‘official’[.]” (Li v. Jin (2022) 83 Cal.App.5th 481, 493.)

Even if the court were to assume without deciding that the SBCC defendants have carried their burden to show that any decision to limit Garcia’s wages or duties, including with respect to Garcia’s position with the Academic Senate, or to deny Garcia the opportunity to interview for a job concern a matter of public interest, the motion wholly fails to identify “any recognized constitutionally protected right of free expression” that the SBCC defendants had in those decisions. (Verceles, supra, 63 Cal.App.5th at pp. 789-790; see also Park, supra, 2 Cal.5th at p. 1072 [“the assertion the University’s hiring decision is a matter of public interest does not suffice to bring that decision within the scope of protected activity defined by section 425.16, subdivision (e)(4)” absent an explanation of “how the choice of faculty involved conduct in furtherance of University speech on an identifiable matter of public interest”] (original italics).)

For all reasons further discussed above, the broad, general, and conclusory arguments and assertions advanced in the present motion, which fail to sufficiently explain why the elements of the first through sixth, eighth, and ninth causes of action are dependent on allegations which each constitute protected activity, are insufficient to meet the SBCC defendants’ burden to show why any specific conduct or activity giving rise to the claims alleged in the first through sixth, eighth and ninth causes of action alleged in the complaint “falls within one of the four categories described in subdivision (e).” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) For these reasons, the court will deny the motion as to these causes of action.

The Seventh Cause of Action:

As to the seventh cause of action alleged in the complaint, the SBCC defendants contend that any false statements made by Gallardo pertain to a member of the Academic Senate at a public academic institution and constitute protected free speech on public education which constitutes a matter of public interest. The SBCC defendants further contend that the statements at issue in the seventh cause of action were made before an official proceeding authorized by law, relate to an issue under consideration or review in that official proceeding, constitute matters of public interest made in a public forum or place open to the public, and were made in furtherance of free speech in connection with a public issue or an issue of public interest. For these reasons, defendants argue, the conduct that gives rise to the seventh cause of action constitutes protected activity under section 425.16, subdivision (e)(1) through (4).

The seventh cause of action for defamation alleged in the complaint arises from the SBCC defendants “knowingly spreading false statements about [Garcia’s] motivations, intentions, and job performance at SBCC and within the wider community” and Gallardo “falsely accusing [Garcia] of ‘creating a hostile work environment’ during the SBCC Board of Trustees meeting on July 20, 2023, and then encouraging Interim President of SBCC, Kindred Murrillo, ‘fire or take care of [Ms. Garcia.]’ ” (Compl., ¶ 74.)

“Section 425.16 ‘does not provide a definition for “an issue of public interest,” and it is doubtful an all-encompassing definition could be provided. However, the statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest.’ [Citation.] ‘[I]n each case where it was determined that a public issue existed, “the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation].” ’ [Citations.]” (Kieu Hoang v. Phong Minh Tran (2021) 60 Cal.App.5th 513, 527 (Kieu).)

As to the allegations that the SBCC defendants spread false statements within SBCC or the community, the SBCC defendants fail to explain why the complaint shows that these statements were made in connection with an official proceeding, or concern a person in the public eye.

For example, the allegations of the complaint do not show that Garcia had “gained notoriety’ in the community. (Kieu, supra, 60 Cal.App.5th at p. 527.) Furthermore, the allegations do not show that all of the statements which support the seventh cause of action were made during an official proceeding or affected conduct that directly affects a large number of people beyond the parties to this action. For these reasons, the SBCC defendants have failed to show why the entirety of the seventh cause of action describes conduct or activity that is protected under section 425.16.

In addition, though Garcia also alleges that the SBCC defendants engaged in efforts to exclude Garcia from the Academic Senate, the SBCC defendants fail to explain why the elements of the seventh cause of action are necessarily supported by these allegations. Instead, allegations that Garcia was excluded from the Academic Senate appear, for purposes of the seventh cause of action, to be incidental to Garcia’s claim. Therefore, even if the court were to find that these allegations describe protected activity, they cannot be stricken under the statute. (Baral, supra, 1 Cal.5th at p. 394 [“[a]llegations of protected activity that merely provide context ... cannot be stricken under the anti-SLAPP statute”]; see also Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [protected conduct must be “the gravamen or principal thrust” of the claim asserted].)
 

As to the purportedly false statement made by Gallardo during a Board of Trustees meeting which on its face supports the seventh cause of action alleged in the complaint, Garcia alleges that this meeting was public, live-streamed, and available on “YouTube”. (Compl., ¶ 32.) The allegations of the complaint, including inferences that may be drawn from those express allegations, are sufficient to show that Gallardo’s statement was made in a place open to the public or a public forum. (Turnbull v. Lucerne Valley Unified School District (2018) 24 Cal.App.5th 522, 534 [conduct which occurred during a board meeting “happened in a place open to the public or a public forum”]; Lee v. Silveira (2016) 6 Cal.App.5th 527, 539 [“alleged defamatory statements made by the defendants about the plaintiff during a duly noticed board meeting met the statutory definition of a ‘public forum’ as provided in subdivision (e)(3) of section 425.16”].)

A statement made in a public forum must also be made “in connection with an issue of public interest....” (Code Civ. Proc., § 425.16, subd. (e(3).) As further discussed above, to determine what constitutes a “public issue”, “courts consider various factors, including ‘whether the subject of the speech or activity ... “could affect large numbers of people beyond the direct participants” [citation] ... and whether the activity “occur[red] in the context of an ongoing controversy, dispute or discussion” [citation] or “affect[ed] a community in a manner similar to that of a governmental entity” [citation].’ [Citation.]” (Bishop, supra, 86 Cal.App.5th at p. 905.)

The allegations of the complaint show that SBCC is a “public community college”. (Compl., ¶ 2.) Noted above, the Board of Trustees meeting at issue constitutes a public forum. From these allegations, it can be reasonably inferred that any statements made during the Board of Trustees meeting alleging misconduct by Garcia, an employee of a public community college, could affect the local community served by SBCC in a manner similar to that of a governmental entity, concern issues of importance to the local population served by SBCC, and occurred in the context of an ongoing dispute or controversy. For these and all further reasons discussed above reasons, the SBCC defendants have met their burden to show that, as to the seventh cause of action alleged in the complaint, Garcia seeks relief based on allegations which arise from protected activity under section 425.16.
 

“If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.)

As Garcia has not filed any opposition to the motion, and instead filed the FAC ostensibly in response to the motion, Garcia has failed to demonstrate that the seventh cause of action alleged in the complaint is “legally sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.) For these and all reasons further discussed above, the court will grant the motion, in part, as to the seventh cause of action to the extent that cause of action arises from statements allegedly made during a meeting of the Board of Trustees of SBCC held on July 20, 2023, as alleged in the complaint.

Noted above, the SBCC defendants request an award of reasonable attorney’s fees. Subject to exceptions which do not appear to apply here, “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) “Procedurally, ‘[t]here are three ways the special motion to strike attorney fee issue can be raised. The successful defendant can: make a subsequent noticed motion as was envisioned by defendant in this case; seek an attorney fee and cost award at the same time as the special motion to strike is litigated, as is often done; or as part of a cost memorandum.’ [Citations.]” (Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 773.)

In addition, “[i]t is settled that a plaintiff may not avoid liability for attorney fees and costs by voluntarily dismissing a cause of action to which a SLAPP motion is directed.” (Sylmar, supra, 122 Cal.App.4th at p. 1054, original italics.) Though the filing of the FAC in which Garcia appears to omit the seventh cause of action operates in substance as a dismissal of that cause of action (Haidet v. Del Mar Woods Homeowners Assn. (2024) 106 Cal.App.5th 530, 537), it does not moot the issue of attorney’s fees and costs claimed by the SBCC defendants. (Sylmar, supra, 122 Cal.App.4th at p. 1055.)

The SBCC defendants indicate in the present motion that they will address the issue and amount of reasonable attorney’s fees and costs in a future motion. For these reasons, the court will determine whether or to what extent the SBCC defendants may recover attorney’s fees and costs upon the filing and service of an appropriate noticed motion.

“There is no such thing as granting an anti-SLAPP motion with leave to amend.” (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 676.) Notwithstanding that Garcia filed the FAC after the present motion was filed by the SBCC defendants, it appears from the face of that pleading and the causes of action alleged therein that all of the matters that would be stricken from the complaint for reasons discussed above do not appear in the FAC. Therefore, it appears that the filing of the FAC is appropriate under Code of Civil Procedure section 472. (See Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870-871 [general discussion of circumstances under which an amendment to a pleading subject to an anti-SLAPP motion may be appropriate].) Therefore, the court will further order the SBCC defendants, Barajas, and Gallardo to, on or before August 20, 2025, file and serve a response to the FAC.