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Appeals Court Ruling Changes Course of Former City Manager Lawsuit Against City of Alameda

The California Court of Appeal recently handed down a ruling the reversed a lower court ruling in favor of Gallant.

The California Court of Appeal recently handed down a ruling the reversed a lower court ruling in favor of Gallant.

Last week, attorneys for former Interim City Manager Ann Marie Gallant filed a case management conference document with the court indicating their willingness to participate in mediation, rather than continuing to slug it out in the courts. Gallant sued the city in 2011 for wrongful termination.

The move comes after a California Court of Appeal ruling in late June that reversed a lower court decision in favor of Gallant.

The City of Alameda had moved to dismiss Gallant’s lawsuit using Anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation, claiming that the decision by then-Councilmember Rob Bonta, Councilmember Lena Tam, and Mayor Marie Gilmore, in late 2010, to terminate Gallant, amounted to protected speech, and that, under SLAPP laws, the suit was intended to chill free speech.

The trial court disagreed, and ruled in favor of Gallant, but the City of Alameda appealed, and on June 24th, the appellate court handed down a ruling, agreeing with the City of Alameda, saying that the lawsuit was based on protected free speech activity.

The higher court remanded the case to Alameda County Superior court for further proceedings.

SLAPP legislation was originally introduced in response to developers and large corporations using the courts to silence opponents to development projects. It seems unlikely its framers in the early nineteen-nineties imagined it being used this way.

The website for the California Anti-Slapp Project provides a list of various activities that may be “protected speech and expression on issues of public interest.” The list includes, among other items, posting a review on the internet, writing a letter to the editor, circulating a petition, reporting police misconduct, making comments to school officials and speaking at a public meeting.

Representatives from the project did not respond to a request for comment.

However, Attorney James Moneer, of San Diego, a SLAPP law specialist, agreed to review the appellate court ruling. He told us, “the anti-SLAPP statute has long ago expanded well beyond its paradigmatic origins and has been applied to just about every cause of action imaginable so long as the substance of the claim fits into one or more of the four categories of protected speech enumerated in California Code of Civil Procedure Section 425.16, subd. (e).”

He also explained that, “the statute applies an objective test to first determine whether the lawsuit bases liability on prima facie First Amendment petition activity or speech activity in connection with a public issue. The former right of petition has no public issue requirement while the latter free speech prong does. If the court determines that a cause of action arises from what is know as ‘protected activity’ under the first prong of the statute, then the court shifts the burden to plaintiff to show a probability of prevailing on the claim with admissible evidence.”

So, in the Gallant case, the appellate court ruled that the Alameda City Council decision to fire her was protected speech, under the SLAPP legislation.

Moneer continued, “the vote was conducted by the City Council at an official public hearing to terminate a City employee, which was the required procedure by law. The court held essentially that the votes by the council members were oral or written statements or writings made before an official governmental proceeding and were made in connection with an issue under review by the City Council – the termination of Gallant’s employment as a City Manager.

“Whether an anti-SLAPP motion can be brought to strike a claim depends solely upon the act or conduct upon which the cause of action is based – not the discriminatory motives ascribed to that conduct.”

The case continues with a case management conference set for early September.

Moneer closed his review of the ruling for us with the statement, “As I tell my law students and lawyers who attend my CLE SLAPP seminars, ‘SLAPP motions have become the nuclear defense motion of choice. Everything else is just a toy.'”

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