Filed 11/29/22 O’Connor v. Phonexa Holdings CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

RACHEL O’CONNOR,

Cross-complainant and 

Respondent,

v.

PHONEXA HOLDINGS, LLC,

Cross-defendant and Appellant.

 B311537

 (Los Angeles County

 Super. Ct. No. 

20STCV29922)

APPEAL from an order of the Superior Court of Los 

Angeles County, Richard L. Fruin, Jr., Judge. Affirmed.

Law Office of Steven R. Friedman, Steven R. Friedman,

and Michael E. Friedman for Cross-defendant and Appellant.

Tashroudian Law Group, David A. Tashroudian, and Mona 

Tashroudian for Cross-complainant and Respondent.
2

Phonexa Holdings, LLC (Phonexa) hired Rachel O’Connor 

(O’Connor) as its chief marketing officer and fired her a few 

months later after she raised concerns about the company’s

compliance with COVID-19 public health measures. The parties 

then filed dueling lawsuits. Phonexa (the first to file suit) 

claimed O’Connor and her husband Sean Halley (Halley) stole 

proprietary information from the company. O’Connor filed a 

cross-complaint asserting various employment claims. Both sides 

then filed anti-SLAPP motions to strike the other’s lawsuits. We 

resolved O’Connor and her husband’s appeal from the trial 

court’s denial of their anti-SLAPP motion in a prior opinion. 

(Phonexa Holdings, LLC v. O’Connor (Aug. 26, 2022, B308548) 

[nonpub. opn.] (Phonexa I).

1

) This appeal is from the trial court’s 

order denying Phonexa’s anti-SLAPP motion. We consider 

whether the cross-complaint’s references to Phonexa’s lawsuit 

and COVID-19-related statements by Phonexa’s CEO support 

O’Connor’s claims for recovery.

I. BACKGROUND

A. Phonexa’s Complaint

Phonexa sued O’Connor and Halley in August 2020. 

Among other things, Phonexa alleged O’Connor’s relationship 

1 O’Connor and Halley contended their copying of company 

data, which served as the basis for all of Phonexa’s claims against 

them, was undertaken in anticipation of litigation and qualified 

as protected activity under the anti-SLAPP statute. The trial 

court determined O’Connor and Halley failed to satisfy either 

prong of the anti-SLAPP statute. We affirmed in part and 

reversed in part, concluding Phonexa’s claims arose from 

protected activity but some had minimal merit.
3

with senior management at the company deteriorated; she took

two days off work starting on July 20, 2020; and during her time 

off, she “cop[ied] the hard drive of her work computer to a series 

of personal external hard drives and thumb drives” with help 

from Halley. Phonexa alleged O’Connor copied the electronic 

materials at the direction of an executive at a competing company

to steal Phonexa’s trade secrets.

Phonexa’s specific causes of action against O’Connor were

for breaching confidentiality agreements, breach of fiduciary

duty, violation of the Computer Fraud and Abuse Act (CFAA) (18 

U.S.C. § 1030), violation of California’s analogue of the CFAA 

(Pen. Code, § 502), misappropriation of trade secrets, violation of 

the Unfair Competition Law (Bus. & Prof. Code, § 17200), receipt 

of stolen property (Pen. Code, § 496), and conversion.

B. The Allegations of O’Connor’s Cross Complaint

O’Connor filed a cross complaint asserting multiple

employment claims against Phonexa.2 These are the pertinent 

allegations.

Phonexa’s chief executive officer, David Gasparyan 

(Gasparyan), initially instructed Phonexa employees to work 

from home in compliance with stay-at-home orders issued in 

response to COVID-19, but later, Gasparyan “would question and 

interrogate employees who were working from home.” He also

made several statements about COVID-19: the disease was a 

2 O’Connor filed a first amended complaint after Phonexa 

filed its anti-SLAPP motion. The trial court determined this did 

not moot the anti-SLAPP motion to the original, superseded 

complaint, and that determination is unchallenged on appeal.
4

“‘hoax’ and an attempt to disrupt the . . . 2020 presidential 

elections,” something “exaggerated by the media,” and “no more 

dangerous than the common flu.” “Many” employees returned to 

the office for fear of losing their jobs, and when O’Connor shared 

employee concerns regarding Phonexa’s return-to-work policy 

with human resources in May 2020, Gasparyan demanded the 

complaining employees’ names and threatened retaliation.

O’Connor worked remotely throughout her tenure at 

Phonexa. She advised Phonexa in June 2020 that she “suffers 

from a preexisting medical condition [that] can flare up under 

stressful conditions” and required her to be cautious about 

contracting COVID-19. Despite this notice and public health

orders requiring non-essential employees to work from home, 

Gasparyan asked O’Connor “numerous times” when she planned 

to work in the office.

During a July 20, 2020, phone call, Gasparyan “berated 

and belittled” O’Connor and “falsely accus[ed] her of forcing her 

direct reports to work from home . . . .” Two days after that

phone call, O’Connor sent Phonexa a “formal written complaint” 

via email that objected to: the company’s “non-compliance with 

state-mandated rules and regulations”; 

“retaliation . . . by . . . Phonexa and Gasparyan, including 

harassment and being subject to a hostile work environment due 

to [O’Connor’s] previously verbalized health and safety concerns”; 

and “unfair treatment . . . for making prior complaints regarding 

health and safety.” And about two hours after sending that

email, O’Connor was notified her employment was being

terminated.

As we shall discuss in more detail, paragraphs 55 and 56 of 

the cross-complaint—part of the document’s “general 
5

allegations”—allege: (1) Phonexa sued her “[a]s further 

retaliation for bringing complaints regarding health and safety to 

[its] attention” and (2) “[Phonexa’s] act of filing a lawsuit against 

[O’Connor] further exacerbated [her] emotional distress and 

financial damages.”

O’Connor’s enumerated causes of action against Phonexa 

are for wrongful termination in violation of public policy;

retaliation in violation of Labor Code sections 1102.5 and 6310;

maintaining an unsafe workplace in violation of Labor Code 

section 6400; violation of the Unfair Competition Law (Bus. & 

Prof. Code, § 17200); and violation of the Fair Employment and 

Housing Act (FEHA) in the form of disability discrimination 

(Gov. Code, § 12940, subd. (a)), failure to provide a reasonable 

accommodation (Gov. Code, § 12940, subd. (m)), and failure to 

engage in the interactive process (Gov. Code, § 12940, subd. (n)). 

Although each enumerated cause of action incorporates all 

preceding paragraphs of the complaint by reference, none 

expressly mentions Phonexa’s lawsuit against O’Connor.

C. Phonexa’s Anti-SLAPP Motion

Phonexa’s anti-SLAPP motion sought to strike “O’Connor’s 

action in its entirety” or, in the alternative, each cause of action 

“and each purported claim contained therein.” Phonexa 

contended O’Connor’s claims arise from two categories of antiSLAPP protected activity: statements on an issue of public 

interest (Gasparyan’s statements concerning COVID-19) and a 

statement made in connection with an issue under review in a 

judicial proceeding (Phonexa’s lawsuit).

The trial court rejected the first of these protected activity 

contentions, emphasizing that references to Gasparyan’s 
6

statements in O’Connor’s complaint “are merely explanatory—

they were clearly intended as background for [O’Connor’s] 

position that she was fired because she didn’t feel safe, that she 

was ‘constantly harassed’ about when she would be returning to 

the workplace, and that she was terminated within [two] hours 

after she lodged a complaint about the purported harassment.” 

The trial court agreed, however, that paragraphs 55 and 56 

(concerning Phonexa’s lawsuit) did allege a claim for retaliation 

arising from protected activity. Analyzing the matter as “a Prong 

[Two] issue,” the trial court concluded O’Connor demonstrated a 

probability of success on the merits and accordingly denied 

Phonexa’s motion notwithstanding its (partial) protected activity 

determination.

II. DISCUSSION

We hold the trial court did not err in denying Phonexa’s 

anti-SLAPP motion, but we reach that conclusion without finding 

it necessary to proceed past step one of anti-SLAPP analysis. 

Our Supreme Court has repeatedly explained that “[a]llegations 

of protected activity that merely provide context, without 

supporting a claim for recovery, cannot be stricken under the 

anti-SLAPP statute.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 394 

(Baral); accord, Bonni v. St. Joseph Health System (2021) 11 

Cal.5th 995, 1012 (Bonni); Park v. Board of Trustees of California 

State University (2017) 2 Cal.5th 1057, 1064 (Park).) Here, as we 

go on to explain, O’Connor’s allegations concerning Phonexa’s 

lawsuit and Gasparyan’s statements are best read to provide 

mere context for, and evidence of, her claims that she was fired 

for objecting to Phonexa’s COVID-19 policies and that she was 

pressured to return to the office. The challenged allegations are 
7

therefore incidental and do not support a claim for recovery, and 

they are not subject to striking under the anti-SLAPP statute.

A. Legal Framework

Phonexa invokes two categories of anti-SLAPP protected 

activity. Code of Civil Procedure section 425.16, subdivision 

(e)(2) protects “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 Section 425.16, subdivision (e)(4) 

protects “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.”

“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, supra, 11 Cal.5th at 1009.)

In the first-step analysis, courts “‘consider the elements of 

the challenged claim and what actions by the defendant supply 

those elements and consequently form the basis for liability.’ 

[Citation.] The defendant’s burden is to identify what acts each 

challenged claim rests on and to show how those acts are 

3 Undesignated statutory references that follow are to the 

Code of Civil Procedure.
8

protected under a statutorily defined category of protected 

activity. [Citation.]” (Bonni, supra, 11 Cal.5th at 1009.)

B. O’Connor’s Claims Do Not Arise from Phonexa’s 

Lawsuit

The anti-SLAPP statute applies only where protected 

“speech or petitioning activity itself is the wrong complained of, 

and not just evidence of liability or a step leading to some 

different act for which liability is asserted.” (Park, supra, 2 

Cal.5th at 1060; Rand Resources, LLC v. City of Carson (2019) 6 

Cal.5th 610, 620 [a defendant’s first-step burden requires a 

showing “that the ‘conduct by which plaintiff claims to have been 

injured falls within one of the four categories described in 

subdivision (e) [of section 425.16]’ [citation], and that the 

plaintiff’s claims in fact arise from that conduct”].) Identifying 

the allegations that supply the elements of a plaintiff’s claims is 

critical to our first-step analysis because, as already mentioned, 

“[a]llegations of protected activity that merely provide context, 

without supporting a claim for recovery, cannot be stricken under 

the anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at 394; see also 

Starview Property, LLC v. Lee (2019) 41 Cal.App.5th 203, 209 

[“By its terms, the anti-SLAPP statute is directed at striking 

causes of action, not merely factual allegations”].)

In its opening brief on appeal, Phonexa contends that 

because each enumerated cause of action in O’Connor’s crosscomplaint incorporates paragraphs 55 and 56 (concerning 

Phonexa’s lawsuit against her), the “entire complaint” is 

“permeat[ed]” with “claims which must be stricken.” But the fact 

that sections of a pleading stating claims for recovery incorporate 

paragraphs referencing protected activity does not by itself 
9

establish the claims arise from protected activity. (Olivares v. 

Pineda (2019) 40 Cal.App.5th 343, 352 [“incorporated allegations 

of protected activity merely provide context and are not the basis 

for [the] plaintiffs’ claim for recovery”].) Phonexa makes no effort 

to link the allegations in paragraphs 55 and 56 to the elements of 

O’Connor’s various claims and instead rests on the notion that its 

lawsuit represents the “gravamen” of all alleged claims. Even if

this were a defensible reading of the cross-complaint, our 

Supreme Court expressly rejected this sort of analytical approach

in Bonni. (Bonni, supra, 11 Cal.5th at 1009-1011 [the gravamen 

approach—whereby “a court [does] not examine the underlying 

acts individually, but instead . . . identif[ies] the ‘gravamen’ or 

‘principal thrust’ of the cause of action and consider[s] only 

whether that gravamen arises from protected activity”—would 

“saddl[e] courts with an obligation to settle intractable, almost 

metaphysical problems about the ‘essence’ of a cause of action 

that encompasses multiple claims”].) We therefore reject it here 

too.

In Phonexa’s reply brief, however, the company argues 

paragraphs 55 and 56 state a claim for recovery in their own 

right, again relying on their incorporation by reference in 

O’Connor’s enumerated causes of action. But plaintiffs 

frequently incorporate general allegations into all subsequent 

causes of action as a matter of course (Kajima Engineering and 

Const., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 931-

932), and the elements of O’Connor’s theories of recovery are not

conceivably established by Phonexa’s lawsuit. Indeed, the two 

claims for recovery that are most amenable to Phonexa’s 

argument —O’Connor’s claims for retaliation under Labor Code 

sections 1102.5 and 6310—still do not arise from Phonexa’s 
10

lawsuit because both require an adverse employment action and 

neither can support liability based on post-termination conduct.

4

 

(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 

288 [“a prerequisite to asserting a violation of Labor Code section 

1102.5 is the existence of an employer-employee relationship at 

the time the allegedly retaliatory action occurred”], emphasis 

added; Lab. Code, § 6310, subd. (a) [prohibiting “discharge” or 

“discriminat[ion]” against an employee for, among other things, 

reporting workplace safety issues].)

There are, in other words, sufficient facts alleged as part of 

O’Connor’s enumerated causes of action to support her claims, 

and in that circumstance, we will not reach to read a cause of 

action to include additional, meritless claims based on the 

blanket incorporation of preceding allegations. (Oakland Bulk & 

Oversized Terminal, LLC v. City of Oakland (2020) 54 

Cal.App.5th 738, 755 [rejecting the defendant’s attempt to 

“ignore[ ] [the] plaintiffs’ substantiated allegations, and replace[ ]

those allegations with its own version of facts to attempt to show 

the claims arise out of protected activity”]; see also Ratcliff v. 

Roman Catholic Archbishop of Los Angeles (2022) 79 Cal.App.5th 

982, 1005 [“For the purposes of the present appeal, we take the 

amended complaint at its word. The claim for ratification is 

based on the allegations actually identified as ratifying”].) Our

reading of O’Connor’s complaint is also confirmed by her repeated 

representations, both in the trial court and on appeal, that she 

4

In its reply brief, Phonexa acknowledges and does not 

dispute O’Connor’s recognition that, as an act occurring after she 

was fired, Phonexa’s lawsuit cannot serve as a basis for any of 

her claims.
11

does not seek any recovery predicated in whole or part on

Phonexa’s lawsuit.

C. O’Connor’s Claims Do Not Arise from Gasparyan’s 

Statements Regarding the Public Response to 

COVID-19

O’Connor’s claims for wrongful termination in violation of 

public policy and retaliation in violation of Labor Code sections 

1102.5 and 6310 concern her allegedly retaliatory firing; her 

claim for violation of Labor Code section 6400 concerns allegedly 

unsafe working conditions; her FEHA claims concern the 

pressure Gasparyan applied to hasten her return to the office 

notwithstanding her medical condition; and her claim under the 

Unfair Competition Law draws on various parts of all that we 

just recounted. The only claims for which statements by 

Gasparyan might supply a basis for liability are those under 

FEHA.

Phonexa contends O’Connor “repeats and references 

Gasparyan and Phonexa’s protected speech as a basis for 

liability” in paragraphs “22, 24, 26, 29, 30, and 31” of the crosscomplaint.5

 These paragraphs, however, all appear in the general 

5 Gasparyan’s statements about when O’Connor would begin 

working from the office are not protected activity under the antiSLAPP statute because they do not address an issue of public 

interest; they are distinct from any broader debate about the 

public response to COVID-19. (FilmOn.com Inc. v. DoubleVerify 

Inc. (2019) 7 Cal.5th 133, 150 [statements are protected under 

the anti-SLAPP statute’s catch-all provision only where there is 

“‘some degree of closeness’ between the challenged statements 
12

allegations section and provide, at most,6“evidence of liability or 

a step leading to some different act for which liability is 

asserted.” (Park, supra, 2 Cal.5th at 1060.) Paragraph 22, for 

instance, alleges that “[o]n numerous occasions, Gasparyan 

would question and interrogate employees who were working 

from home and not working in the office, all while the Governor’s 

Orders were still in place.” Assuming this was protected activity, 

its only function in the complaint is to buttress O’Connor’s claim 

that Gasparyan pressured her to return to work and to 

contextualize her workplace safety complaint. Paragraphs 26

and 31, which allege Gasparyan said “jobs would be lost” if the 

business suffered due to remote work and threatened to retaliate 

against employees whose concerns O’Connor relayed to him, 

operate to the same effect. Paragraph 30, which notes

Gasparyan’s skepticism about the severity of COVID-19 generally

and alleges that O’Connor told Gasparyan she “did not agree with 

his comments, but respected that people have different opinions,” 

likewise sets the scene for the acts which form the basis of 

O’Connor’s claims without any suggestion that the statements 

themselves justify relief.

Phonexa contends paragraph 51 of O’Connor’s complaint 

“specifically identifies” an email in which Gasparyan suggested 

public health orders violated the First Amendment “as a basis for 

liability.” The relevant portion of paragraph 51, however, 

and the asserted public interest” such that “‘the statement . . . in 

some manner itself contribute[s] to the public debate’”].)

6 Paragraphs 24 and 29 have nothing to do with Gasparyan’s

or Phonexa’s speech. They discuss statewide COVID-19 policies 

and the fact that O’Connor worked remotely.
13

provides as follows: “on July 21, 2020, the day before [O’Connor] 

sen[t] the complaint email to [Phonexa] regarding health and 

safety matters, Gasparyan sent an email to [O’Connor] stating 

that he ‘trusted’ her work.” That is all. There is no reference to 

Gasparyan’s epidemiological or constitutional theories. This 

allegation serves only to provide evidence that there was no nonpretextual reason for O’Connor’s termination.

Phonexa further contends paragraphs 57 through 62, 

“when stripped of the clever phrasing, . . . demonstrate Phonexa

is being sued for speech alone.” These paragraphs discuss 

O’Connor’s medical condition, her disclosure of this to Phonexa, 

alleged harassment and pressure to return to work, and her 

termination in retaliation for submitting a complaint regarding 

workplace safety. Phonexa appears to suggest O’Connor is in 

effect “suing Phonexa for providing the accommodation she 

requested.” Even if this were an accurate summary of the basis

of O’Connor’s FEHA claims, it has nothing to do with protected 

speech activity.

Departing from O’Connor’s complaint, Phonexa further 

contends O’Connor’s special motion to strike Phonexa’s complaint 

and supporting materials shed light on the basis for her claims. 

Assuming for argument’s sake that the anti-SLAPP statute’s 

provision that “the court shall consider the pleadings, and 

supporting and opposing affidavits stating the facts upon which 

the liability or defense is based” (§ 425.16, subd. (b)) extends to

these materials, they still do not support Phonexa’s position. 

Phonexa emphasizes O’Connor’s characterization of Phonexa and 

Gasparyan as “COVID deniers,” references to emails in which 

Gasparyan touted “conspiracy theories about Dr. Fauci” and 

“circulated a meme of Governor Newsom,” and discussion of
14

Gasparyan’s vow that he would fight any charged violation of 

public health orders in court. Like similar remarks mentioned in 

O’Connor’s complaint, these statements merely provide context 

for the alleged acts from which O’Connor’s claims do arise.

DISPOSITION

The order denying Phonexa’s special motion to strike is 

affirmed. O’Connor shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.