Filed 4/7/15 FTR International v. Bd. of Trustees of the Los Angeles Community College Dist. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

FTR INTERNATIONAL, INC., et al.,

Plaintiffs and Respondents,

v.

BOARD OF TRUSTEES OF THE 

LOS ANGELES COMMUNITY 

COLLEGE DISTRICT et al.,

Defendants and Appellants.

 B242220

 (c/w B244407, B252040)

 (Los Angeles County

 Super. Ct. No. BS136137)

APPEAL from orders of the Superior Court of Los Angeles County. 

Jane L. Johnson, Judge. Affirmed in part, reversed in part and remanded with directions.

Orbach, Huff & Suarez, David M. Orbach, Enrique M. Vassallo, Marley S. Fox 

and Fabiola M. Rivera for Defendants and Appellants.

Traber & Voorhees, Theresa M. Traber, Lauren Teukolsky, Rebecca PetersonFisher; Raisin and Kavcioglu, Bradley A. Raisin and Armenak Kavcioglu for Plaintiffs 

and Respondents.

_________________________
2

The Board of Trustees (Board) of the Los Angeles Community College District 

(District) debarred FTR International, Inc. (FTR) and Nizar Katbi (Katbi) (collectively 

FTR Parties) from bidding or working on District projects for five years. Alleging 

various wrongs, the FTR Parties sued the Board and six of its individual trustees 

(Trustees).

1

The Board and Trustees appeal from: (1) the denial of their anti-SLAPP2

motion to strike the FTR Parties’ first amended complaint (FAC); (2) the denial of the 

Trustees’ anti-SLAPP motion to strike the new claims in the third amended complaint 

(TAC); and (3) the award of attorney fees to the FTR Parties after the trial court found 

that the first anti-SLAPP motion was frivolous.

Based on qualified immunity, we conclude that the first anti-SLAPP motion 

should have been granted as to the FTR Parties’ personal capacity claim against the 

Trustees for denial of procedural due process at the debarment hearing in violation of title 

42 United States Code section 1983 (section 1983). Because of the immunities in 

Government Code sections 820.2 and 820.9, the second anti-SLAPP motion should have 

been granted as to the FTR Parties’ claim for intentional interference with contract and/or 

prospective economic advantage, and their claim for negligence. The award of attorney 

fees must be reversed because the first anti-SLAPP motion had partial merit and was not 

frivolous as a matter of law. In all other respects, the orders are affirmed. 

Upon remand, what remains for further proceedings are: a taxpayer claim against 

the Board and Trustees pursuant to Code of Civil Procedure section 526a; official 

capacity claims against the Trustees under section 1983 for denial of procedural due 

process and First Amendment retaliation; and a personal capacity claim against the 

Trustees under section 1983 for First Amendment retaliation.

 

1

The Trustees are Miguel Santiago, Tina Park (Trustee Park), Nancy Pearlman, 

Kelly Candaele, Scott J. Svonkin, and Steve Veres.

2

“SLAPP” is shorthand for strategic lawsuit against public participation. (Fahlen v. 

Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665.) The anti-SLAPP statute is 

Code of Civil Procedure section 425.16. 
3

FACTS3

The Project at Los Angeles Valley College

In 2006, the District contracted with FTR to build the Allied Health and Science 

Building at Los Angeles Valley College (Allied Project). Robert Payinda (Payinda) was 

the District’s project inspector. The Allied Project was substantially complete in 2008.

Katbi negotiated with the District’s project manager to finalize the job and settle 

all outstanding issues in exchange for a $40,000 credit from FTR. The District’s project 

manager told FTR it had no more responsibility on the project. As a result, FTR and the 

District entered into a final change order that stated: “This is a final change order for full 

and final settlement for all disputes, extras, credits, back charges, time delays, delay for 

damages and/or impact between both parties.” Katbi understood that after signing the 

final change order, FTR and the District would not have claims against each other. 

Subsequently, he submitted a Division of the State Architect Verified Report (DSA 6 

Form) and represented that the Allied Project was 100 percent complete.4 On August 3, 

2009, the Board ratified the final change order between the parties.

On March 24, 2010, FTR filed a petition for writ of mandate directing the District 

to release funds withheld pursuant to stop notices.

 

3 Below, the District and Trustees objected to evidence submitted by the FTR 

Parties. The Board and Trustees contend that the trial court erred by overruling a 

majority of those objections. The objections in connection with the first anti-SLAPP 

motion have been waived on appeal because the Board and Trustees failed to analyze 

their objections by applying the relevant law to the specific objectionable evidence. 

(Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11 [“It is 

not our responsibility to develop an appellant’s argument”].) Certain objections 

pertaining to the second anti-SLAPP motion have been adequately briefed, and we have 

considered them. Our statements of facts was written with these considerations in mind.

4 At the debarment hearing, the architect for the Allied Project, Andrew Labov, was 

asked to explain the difference between substantial completion and 100 percent 

completion. He testified: “The difference is . . . that substantial completion you identify 

that . . . work is still remaining to be done on the project, and final completion is when all 

parties agree that all of that work has been completed or the owner waives his right and 

accepts work in the as-is condition.”
4

As authorized by the Board, the District filed a cross-complaint and alleged that 

FTR was negligent and breached its contract by performing defective work when 

constructing the Allied Project. In a statement of claims, the District listed $4,366,111.64

in damages.5

The Project at Los Angeles Mission College

In 2007, the District hired FTR as the general contractor to build the Health and 

Physical Education Fitness Center at Los Angeles Mission College (Mission Project). By 

mid-2008, the District issued change order No. 1, which related to a pipeline and 

earthwork. In addition, the college project manager, Nick Quintanilla (Quintanilla),

6

asked FTR to comply with field order Nos. 36 and 37, which was grading and trenching

work outside the scope of the original project. At first, FTR balked at the field orders

because it had not been paid about $1 million for already completed extra work. 

However, Katbi told his employees to move forward, and they did. 

FTR drafted pay request No. 14, which it submitted to the District. In that pay 

request, for each item, FTR estimated how much work was completed and how much it 

expected to complete by the end of July 2008. Regarding change order No. 1, FTR 

estimated that 43 percent was complete.

Quintanilla spoke to his superiors and was advised that the District’s executive 

director, Larry Eisenberg (Eisenberg), and others wanted to avoid any delays and had 

therefore approved paying FTR for extra work with money earmarked for other items. 

Subsequently, Quintanilla told FTR to bill 90 percent of the work on change order No. 1.

 

5

The record suggests that this action was deemed related to a lawsuit filed by 

Hickman Mechanical, Inc. against FTR (Hickman Mechanical, Inc. v. FTR International, 

Inc. et al. (Super. Ct. L.A. County, No. BC398074) (Hickman Action). 

6

Through a construction company called Gateway, Quintanilla was the person hired 

by the District to supervise the Mission Project. Communication between FTR and the 

District went through Quintanilla. FTR submitted pay applications once a month after 

negotiating the percentages with Quintanilla.
5

FTR revised pay request No. 14 as Quintanilla instructed, and it was then paid by the 

District.7

The Los Angeles Times Articles

In February 2011, the Los Angeles Times published a series of articles accusing 

college officials, contractors and the Board of wasting tens of millions of dollars due to 

poor planning, frivolous spending and shoddy workmanship. A March 2011 article 

focused on the Allied Project. It claimed that the project had numerous and serious 

defects and was critical of FTR, Eisenberg and many others. According to the article,

Payinda issued 422 citations for deviations in design. Later in the same month, the 

Los Angeles Times published an article stating that the District had fired Eisenberg, and 

that he would be replaced by Thomas Hall (Hall) as the interim executive director.

Katbi’s Letter to the Trustees

In a letter dated October 5, 2011, Katbi wrote to the Trustees to defend FTR 

against rumors, gossip and false statements made by the Los Angeles Times and former 

District employees. According to the letter: None of the accusations against FTR were

true. The problems at the Allied Project were caused by subcontractors, and FTR had 

insurance in place to cover the defective work. The real problem at the Allied Project 

was Payinda. He was a racist who repeatedly disparaged Arabs, who he referred to as 

“turban heads.” In addition, he said companies such as FTR should not be allowed to 

take jobs away from American companies. At one point, FTR complained to the District

that Payinda was using foul language to FTR’s employees and displaying lewd pictures 

of naked women on the walls of the trailer/office that he used on the college campus. 

After FTR complained, Payinda smeared FTR by blaming it for all the design errors and 

creating a long list of nonconforming work. Moreover, Payinda submitted fraudulent 

bills to the District for his time and that of an assistant inspector. Based on Payinda as a 

 

7

The FTR parties represent that the District “later modified the paperwork to reflect 

the proper payments and work done under the proper work orders.”
6

source, the Los Angeles Times published several articles containing false statements that 

painted FTR in a negative light. 

Continuing on, the letter stated that when FTR submitted the low bid on a project 

at East Los Angeles College, the second and third low bidders sent protest letters. One of 

the protests falsely stated that FTR had been terminated on a project at Pierce College. 

The District informed FTR it planned to honor the protests and reject FTR’s bid. This 

was done in bad faith because the District made the decision before reviewing FTR’s 

responses to the protests.

Notice of Debarment Hearing

The District’s staff recommended that the FTR Parties be debarred for five years. 

In a letter dated October 17, 2011, Hall notified the FTR Parties that a committee of the 

Trustees would hold a hearing in December 2011 to determine whether the FTR Parties 

should be debarred for up to five years from bidding, contracting, subcontracting or 

performing work on any District project, and whether the FTR Parties should be found 

nonresponsible bidders with respect to the Math & Science Complex at East Los Angeles 

College. 

The letter listed the following three charges: 

(I) When FTR submitted pay request No. 14 in connection with the Mission 

Project, the pay request falsely stated that change order No. 1 was 90 percent complete. 

(II) FTR submitted a false DSA-6 Form for the Allied Project stating that the “entire 

[Division of the State Architect (DSA)] approved scope is 100 [percent] complete,” that 

all noncompliant work was completed, and that “all construction has, in every material 

respect, been performed in compliance with the DSA approved documents.” (III) FTR 

failed to construct the exterior envelope of the Allied Project, FTR substituted improper 

and inadequate materials, and it failed to meet the standard of care in the construction

industry. 

The FTR Parties’ Ex Parte Application

FTR filed an ex parte application seeking a temporary restraining order and an 

order to show cause regarding a preliminary injunction preventing the District from 
7

holding a debarment hearing. Also, FTR requested leave to file a second amended 

complaint to add a cause of action for an injunction enjoining the District from 

proceeding with the debarment hearing during the pendency of litigation, and a cause of 

action seeking a declaration from the trial court that the debarment hearing was

unconstitutional and illegal.

In support of the application, Katbi submitted a declaration stating that FTR would 

go out of business if it was debarred. 

The ex parte application was denied. 

The FTR Parties’ Prehearing Requests; the District’s Response

Via an e-mail to the Board’s counsel, David Orbach (Orbach), the FTR Parties 

requested an opportunity to voir dire the Trustees. Then, in a letter to Orbach, the FTR 

Parties objected to the Board being the arbiter of the debarment hearing on the grounds of 

bias. According to the FTR Parties, the Board was biased, inter alia, because of the 

ongoing litigation between FTR and the District, and because the FTR Parties had been 

singled out for selective prosecution due to Katbi being an Arab-American of Syrian 

descent. The FTR Parties requested a hearing before a neutral hearing officer pursuant to 

Board Rule 71400.40.

Orbach responded by letter and informed the FTR Parties that the District intended 

to proceed with the hearing as noticed. He indicated that the FTR Parties would not be 

allowed to voir dire the Trustees. 

The Debarment Hearing Before the Committee

The debarment hearing was held before a Board committee comprised of Trustee 

Park and Mona Field (Trustee Field).8 Trustee Park indicated at the outset that the staff 

recommendation of debarment would be presented by attorneys Keith Smith and Stewart 

Reid from the law firm of Wood, Smith, Henning and Berman, and that the committee 

and Board would be independently advised by Orbach. Camille A. Goulet (Goulet), from 

the District’s Office of the General Counsel, was also present. As the hearing proceeded, 

 

8

Trustee Field is not a party to the litigation.
8

various witnesses testified. Orbach advised the committee on such issues as how to 

proceed and how to rule on evidentiary objections. At one point, the FTR Parties’ 

attorney objected to a question, and Orbach stated, “The witness may go ahead and 

answer.” 

When the parties finished presenting their evidence and arguments, counsel for the 

FTR Parties requested findings on their affirmative defenses of estoppel, unclean hands, 

laches and selective prosecution. Orbach informed the committee that “it would be my 

recommendation that you do not respond to counsel’s request[.]” He went on to provide 

the committee with written findings. They read the findings into the record, made some 

modifications, and then voted to adopt the findings and recommend a three-year 

debarment. As recommended by Orbach, the committee did not rule on the affirmative 

defenses. 

Following the hearing, Orbach prepared a document entitled Committee’s Report, 

Findings and Recommendation. 

The District’s Debarment of the FTR Parties

In February 2013, the full Board convened and considered the recommendation of 

the committee. Orbach fielded questions from the Trustees regarding the length of the 

debarment and other matters. The Board voted to debar the FTR Parties for five years.9

Later, the Board terminated five existing projects with FTR. As a result, the District 

refused to pay over $10 million that it owed to FTR for work it had completed on those 

projects.

FTR’s Losses on Projects for Other Entities; FTR Goes out of Business

At the time of the debarment, FTR had existing projects with the City of Long 

Beach Board of Harbor Commissioners, the City of Los Angeles Board of Harbor 

Commissioners, the Signal Hill Redevelopment Agency, the Southern California 

Regional Rail Authority, the City of Irvine, and the City of La Quinta. Due to the 

debarment, FTR’s creditors placed stop notices on FTR projects and refused to provide 

 

9 While Trustee Field voted yes to debar the FTR Parties for three years, she voted 

no to debarring them for five years. 
9

FTR with credit. It was unable to obtain surety bonds, and therefore it was unable to bid 

on additional projects. FTR lost millions of dollars in contract balances, change orders, 

retention and lost profits.

Shortly after the debarment, FTR went out of business. It laid off nearly 300 

employees, and its creditors filed claims to recover more than $25 million. Because 

Katbi personally guaranteed all of FTR’s loans, Katbi suffered financial loss, and damage 

to his reputation and creditworthiness. 

The FTR Parties’ New Action

The FTR Parties filed a combined petition for writ of administrative mandate 

challenging the debarment order and a complaint for damages. In the complaint, they

alleged a federal civil rights claim under section 1983 for violation of due process, and a 

taxpayer claim under Code of Civil Procedure section 526a. The section 1983 claim 

sought damages. Both claims sought injunctive and declaratory relief. The Board as well 

as the Trustees were named as defendants. The case was deemed related to the parties’ 

ongoing litigation in the Hickman Action.

Subsequently, the FTR Parties filed the FAC.

The Trial Court’s Decision to Grant FTR’s Petition for Writ of Mandate 

The trial court held a hearing on the writ petition and made, inter alia, the 

following findings: (1) all charges sustained against the FTR Parties by the Board should 

be found in favor of the FTR Parties; (2) the Board failed to properly consider FTR’s 

equitable defenses; (3) the debarment hearing should have been held before a neutral 

arbitrator; and (4) there was an unacceptable probability that the Board was biased 

because any finding in favor of the FTR Parties would have undermined the Board’s 

lawsuit against them. The trial court issued a writ directing the Board to set aside the 

debarment order. It then ruled that charge III could be relitigated, but charges I and II 

were barred by equitable estoppel and waiver, and that charge I was also barred by 

laches.
10

The First Anti-SLAPP Motion

The Board and Trustees filed an anti-SLAPP motion to the section 1983 and 

taxpayer claims and argued, among other things, that they were entitled to qualified 

immunity on the federal claim. The motion was denied, and the Board and Trustees 

appealed.

The FTR Parties filed a motion for attorney fees on the grounds that the antiSLAPP motion was frivolous. The trial court granted the motion and awarded the FTR 

Parties $72,897.80. Once again, the Board and Trustees appealed.

The TAC; the Second Anti-SLAPP Motion; the Demurrer

Pursuant to a stipulation, the eventual second amended complaint was superseded 

by the TAC. It alleged a second section 1983 claim. It was based on alleged retaliation, 

inter alia, for Katbi’s exercise of his First Amendment right to send the October 5, 2011, 

letter to the Trustees. Also, the TAC alleged a claim for intentional interference with 

contract and/or prospective economic advantage, and also a claim for negligence.

The Trustees filed an anti-SLAPP motion to the retaliation, interference and 

negligence claims. As to the federal claim, they argued that they could not be sued under 

section 1983 for their official actions and, in any event, they enjoyed absolute quasijudicial immunity and qualified immunity. As for the state tort claims, the Trustees

argued, among other things, that they were entitled to the immunities provided by

Government Code sections 820.2 and 820.9, and that the negligence claim was 

additionally deficient because it did not allege the existence of liability under the Tort

Claims Act.

Raising some of the same arguments, the Trustees demurred to multiple claims set 

forth in the TAC.

Both matters were heard on September 12, 2013.

With respect to the demurrer, the trial court rejected the Government Code 

immunity defenses on the grounds that they applied only to discretionary policy 

decisions, and that the debarment at issue was nothing more than an operational decision. 

The demurrer was sustained with leave to amend with respect to the negligence claim so 
11

that the FTR Parties could allege a statutory basis for liability under the Tort Claims Act. 

In all other respects, the demurrer was overruled. The anti-SLAPP motion was denied.

The District and Trustees appealed.10

DISCUSSION11

I. Standard of Review.

The denial of an anti-SLAPP motion is reviewed de novo. (Schwarzburd v. 

Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal.App.4th 

1345, 1350 (Schwarzburd).) The propriety of an award of attorney fees is reviewed for 

an abuse of discretion (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275), but 

“the determination of whether the trial court had the statutory authority to make such an 

award is a question of law that we review de novo” (Carpenter v. Jack in the Box Corp.

(2007) 151 Cal.App.4th 454, 460).

II. Code of Civil Procedure Section 425.16.

“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” under specified categories “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).) 

As used in the anti-SLAPP statute, act in furtherance of a person’s right of petition 

or free speech includes, inter alia: (1) any written or oral statement or writing made 

before a legislative, executive, or judicial proceeding, or any other official proceeding 

authorized by law, or (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 

 

10 We ordered the three appeals to be consolidated.

11 The District and Trustees challenge the trial court’s order granting the FTR Parties 

leave to amend their negligence claim. That order, however, was not appealable and is 

not reviewable in connection with this appeal.
12

other official proceeding authorized by law. (Code Civ. Proc., § 425.16, subd. (e)(1)-(2); 

Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 [no

“‘issue of public interest’” limitation].)

If, under the first prong of the analysis, a court determines that a cause of action 

arises from protected activity, then the burden shifts to the plaintiff to establish a 

probability of prevailing. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89 (Navellier).) 

A claim must have at least “minimal merit[.]” (Id. at p. 89.) In determining whether 

there is at least minimal merit, a court will consider the pleadings as well as supporting 

and opposing declarations stating the facts upon which claims or defenses are based. 

When assessing the declarations, a court will not weigh credibility, nor will it evaluate 

the weight of the evidence. Rather, it will accept as true all evidence favorable to the 

plaintiff and consider the defendant’s evidence “‘only to determine if it defeats the 

plaintiff’s submission as a matter of law.’ [Citation.]” (Grewal v. Jammu (2011) 191 

Cal.App.4th 977, 989.)

The California Supreme Court has explained that the reach of “[Code of Civil 

Procedure] section 425.16 extends to statements and writings of governmental entities 

and public officials on matters of public interest and concern that would fall within the 

scope of the statute if such statements were made by a private individual or entity.” 

(Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17 (Vargas).)12

 

12 We note that the United States Supreme Court, in Nevada Commission on Ethics 

v. Carrigan (2011) 131 S.Ct. 2343, 2350 (Carrigan), held that a restriction on how 

legislators vote is not a restriction on their personal free speech rights. This is because 

“legislative power thus committed is not personal to the legislator but belongs to the 

people; the legislator has no personal right to it.” (Ibid.) Given the holding in Vargas, 

Carrigan has no impact on the analysis of whether a public official’s vote is protected 

under the anti-SLAPP statute. 
13

III. In Connection With the Section 1983 Claims, the Trustees Were Sued in Their 

Official and Individual Capacities.

As a preliminary matter, we must determine the capacity in which the Trustees 

were sued under section 1983.

Section 1983 provides: “Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State . . . , subjects . . . any citizen of the United 

States or other person . . . to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party injured in an action at 

law, suit in equity, or other proper proceeding for redress, except that in any action 

brought against a judicial officer for an act or omission taken in such officer’s judicial 

capacity, injunctive relief shall not be granted unless a declaratory decree was violated or 

declaratory relief was unavailable.”

A public official can be sued in an official capacity, a personal capacity or both. A 

personal-capacity suit “seek[s] to impose personal liability upon a government official for 

actions he takes under color of state law.” (Kentucky v. Graham (1985) 473 U.S. 159, 

165 (Kentucky); Pitts v. County of Kern (1998) 17 Cal.4th 340, 350 [quoting the rule set 

forth in Kentucky].) An official-capacity suit is another way of “‘pleading an action 

against an entity of which an officer is an agent.’ [Citation.]” (Kentucky, supra, 473 U.S.

at pp. 165–166.) To “establish personal liability in a [section 1983] action, it is enough to 

show that the official, acting under color of state law, caused the deprivation of a federal 

right. [Citation.] More is required in an official-capacity action, however, for a 

governmental entity is liable under [section 1983] only when the entity itself is a 

‘“moving force”’ behind the deprivation, [citations]; thus, in an official-capacity suit the 

entity’s ‘policy or custom’ must have played a part in the violation of federal law. 

[Citations.]” (Kentucky, supra, at p. 166, citing Monell v. New York City Dept. of Social 

Services (1978) 436 U.S. 658, 694.) 

Because a state is not a person under section 1983, an official capacity claim 

against a state does not lie for damages. But an official capacity claim for prospective 

relief will lie because, under sovereign immunity doctrine, such a claim is not treated as 
14

against the state. (Will v. Michigan Department of State Police (1989) 491 U.S. 58, 64–

69, 71, fn. 10.) A damages action against a California school district is considered an 

action against the state. (Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83 

Cal.App.4th 1098, 1110; Mitchell v. Los Angeles Community College District (9th Cir. 

1988) 861 F.2d 198, 201–202.)

“In many cases, the complaint will not clearly specify whether officials are sued 

personally, in their official capacity, or both. ‘The course of proceedings’ in such cases 

typically will indicate the nature of the liability sought to be imposed. [Citation.]” 

(Kentucky, supra, 473 U.S. at p. 167, fn. 14.)

Turning to the FAC, we note that the procedural due process claim and the prayer

did not allege the capacity in which the Trustees were sued, but it is apparent they were 

sued in both their individual and official capacities because the claim sought damages 

(only recoverable against the Trustees in their individual capacities) and injunctive relief 

(only obtainable against the Board). (Hafer v. Melo (1991) 502 U.S. 21, 22–23, 27 [a 

public official sued in his or her personal capacity under section 1983 can be held liable 

for damages arising from their official acts]; Ahanotu v. Massachusetts Turnpike Auth. 

(D. Mass. 2006) 466 F.Supp.2d 378, 398 [“An individual acting in his or her official 

capacity may be sued for prospective injunctive relief to end an ongoing constitutional 

violation, or can be sued in his or her individual capacity for money 

damages”];17A Moore’s Federal Practice - Civil (2015) § 123.40[b][1] (Matthew 

Bender) [“even if the officer performed official functions when the alleged harm 

occurred, the suit is an individual-capacity suit if the plaintiff seeks a damage award 

against the officer personally”].)13 

 

13 In connection with their argument concerning the first section 1983 claim, the 

Trustees cite Brunius v. Parrish (2005) 132 Cal.App.4th 838 (Brunius) for the 

proposition that official actions do not support individual capacity claims. However, 

Brunius did not decide that issue because it was forfeited (id. at p. 859), and cases are not 

authority for issues not decided. (Consumers Lobby Against Monopolies v. Public 

Utilities Com. (1979) 25 Cal.3d 891, 902.)
15

The First Amendment retaliation claim, which was first set forth in the TAC,

alleged that FTR and Katbi are entitled “to general and compensatory damages 

. . . against each defendant in his or her individual capacity, and injunctive and 

declaratory relief against each individual defendant in his or her official capacity.” The 

pleading was unequivocal. The Trustees were sued in both their individual and official 

capacities.14

IV. The Personal Capacity Section 1983 Claims.

A. No Forfeiture of Issues Raised Below; No Forfeiture of Legal Issues.

In their first anti-SLAPP motion, the District and Trustees argued that FTR Parties 

were trying to chill future speech and conduct, the District was not a person subject to 

liability under section 1983, and the Trustees were entitled to qualified immunity for their 

actions. Only in their reply brief did the District and Trustees argue that the protected

activity supporting the anti-SLAPP motion was the conduct of the Trustees in connection 

with the debarment proceedings, and that the Trustees were entitled to absolute quasijudicial immunity. The trial court considered both of those arguments to be forfeited 

because they were not asserted in the moving papers.

FTR urges us to disregard the same arguments the trial court refused to consider. 

We decline. Our review is de novo, and the issues raised in the papers below have been 

fully briefed on appeal. Regardless, we have the discretion to consider all legal issues 

raised by the parties for the first time on appeal. (Concepcion v. Amscan Holdings, Inc.

(2014 ) 223 Cal.App.4th 1309, 1324.)

 

14 With respect to the second section 1983 claim, the Trustees cite our opinion in 

McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198 (McAllister) 

to establish that the TAC did not allege an individual capacity claim. But in McAllister, 

the appellant did not argue that the form of relief sought—and whether it was obtainable 

against the public official or the state—was a relevant inquiry, so we did not analyze that 

issue. In the case at bar, we are confronted with that issue and conclude that the relief 

sought is a relevant inquiry when determining whether a public official has been sued in 

his or her official or individual capacity, or both.
16

B. The Anti-SLAPP Statute Applies to the Personal Capacity Claims.

1. The Personal Capacity Claims Arise Out of the Trustees’ Protected 

Activity of Casting Votes.

With respect to the First Amendment retaliation claim, the parties agree that the

personal capacity claim arises out of the Trustees’ votes to debar the FTR Parties. 

However, they debate whether the procedural due process claim also arises out of the 

Trustees’ votes, and they debate whether the votes of public officials qualify as protected 

activity under the anti-SLAPP statute.

We turn, first, to the basis of the procedural due process claim. This requires us to 

pinpoint the claim’s principal thrust. (Martinez v. Metabolife Internat., Inc. (2003) 113 

Cal.App.4th 181, 188.)

As to each Trustee, the FAC generally alleged that the Trustees “violated the due 

process rights of FTR . . . , not only by voting on February 8, 2012[,] to find [FTR] to be 

non-responsible bidders and debar them from bidding on [District] projects but by acting 

arbitrarily and without factual or legal justification to bar them for 5 years rather than the 

3-year period recommended by the Board’s committee that presided over the evidentiary 

hearing on the charges against FTR[.]” In addition, the FAC averred that in the process 

of debarring FTR, the Board and Trustees denied FTR due process by, among other 

actions, (1) harboring actual bias toward FTR; (2) making arbitrary decisions; and 

(3) making findings and conclusions in a manner that amended the debarment charges

without first affording FTR the chance to respond to the amended charges. All of these 

allegations were incorporated by reference into the claim for violation of procedural due 

process.

As to damages, the procedural due process claim alleged: “As a direct and 

proximate result of defendants’ unlawful actions as alleged herein, plaintiffs have 

incurred and will incur economic damage and losses, lost business opportunity, damage 

to professional and personal reputation, and plaintiff Katbi has suffered severe emotional 

distress and other injuries, thus entitling plaintiffs to general and compensatory damages 

in amounts to be proven at trial.” The claim also alleged that the FTR Parties were
17

entitled to punitive damages because the Trustees acted in conscious disregard of the 

FTR Parties’ rights.

The FTR Parties contend that the principal thrust of this claim is that the Trustees 

denied them procedural due process in connection with the hearing, processing and 

deciding of the three charges. We disagree. The Trustees’ votes are what led to FTR 

being debarred for five years and suffering damages. (Vergos v. McNeal (2007) 146 

Cal.App.4th 1387, 1397 (Vergos) [cause of action arose out of hearing officer’s

“communicative conduct in denying plaintiff’s grievances”].) Moreover, the “hearing, 

processing and deciding of the [debarment issues was] meaningless without a 

communication of the adverse results.” (Ibid. [rejecting the trial court’s rationale that a 

cause of action did not arise from protected activity because it was based on a hearing 

officer’s “conduct and not on the content of what she stated in any proceeding or in the 

exercise of the right to petition”].) 

It is relevant to note that a plaintiff suing on a section 1983 claim may not, 

generally speaking, obtain a compensatory damages award absent actual injury. (Farrar 

v. Hobby (1992) 506 U.S. 103, 112.) However, a plaintiff may sue for nominal damages 

when it has been denied procedural due process. (Ibid.) “The awarding of nominal 

damages for the ‘absolute’ right to procedural due process ‘recognizes the importance to 

organized society that [this] right be scrupulously observed’ while ‘remaining true to the 

principle that substantial damages should be awarded only to compensate actual injury.’ 

[Citation.]” (Ibid.) Because this personal capacity claim seeks compensatory rather than 

nominal damages against the Trustees, it is apparent that the FTR Parties’ main focus is 

compensation for actual injury caused by the votes rather than, for the sake of principle, 

an attack on how the debarment hearing was conducted.15 To bolster our point, we note 

 

15 A debarment proceeding implicates a liberty interest. (Southern Cal. 

Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 542 

(Underground Contractors).) In essence, the FTR Parties claim that they were deprived 

of that interest by the debarment. 
18

that the FTR Parties did not sue Trustee Field even though she contributed to the denial 

of procedural due process

Next, we resolve whether the Trustees’ votes are protected activity under Code of 

Civil Procedure section 425.16, subdivision (e).

The answer is provided by Schwarzburd. It held that board members of a public 

agency who were sued because of how they voted were entitled to the protections of the 

anti-SLAPP statute. (Schwarzburd, supra, 225 Cal.App.4th at pp. 1354–1355.) Under 

the clear import of Schwarsburd, the Trustees’ votes are, indeed, protected activity. 

Urging us to find against anti-SLAPP protection, the FTR Parties rely on City of 

Montebello v. Vasquez (2014) 226 Cal.App.4th 1084 (Montebello). In Montebello, the 

court held that a city council member’s votes and acts of governance, without more, are 

not exercises of free speech or petition and therefore do not fall within the scope of the 

anti-SLAPP statute. (Id. at p. 1092.) The FTR Parties’ reliance is misplaced. On August 

13, 2014, our Supreme Court granted a request to depublish Montebello at the same time 

that it denied a request to depublish Schwarzburd. (City of Montebello v. Vasquez (2014) 

330 P.3d 329 [175 Cal.Rptr.3d 252]; Schwarzburd v. Kensington Police Protection & 

Community Services Dist. Bd. (Aug. 13, 2014, S219175) ___ Cal.4th ___ [2014 Cal. 

Lexis 5520].) Given that our Supreme Court has depublished Montebello, it is not 

permissible for us to consider that opinion.

2. Public Policy Does not Bar the Application of the Anti-SLAPP Statute to 

the Personal Capacity Claims.

Even if the votes would otherwise fit within the scope of the language in Code of 

Civil Procedure section 425.16, subdivision (e), the FTR Parties argue that public policy 

dictates that the anti-SLAPP statute have no application. In their view, applying the antiSLAPP statute here would encourage public officials to insulate their wrongful actions by 

having a local political body vote to approve of their misconduct. This argument fails 

because the damage would flow from the misconduct, not the vote, and the anti-SLAPP 

statute would not be triggered by the artifice of that vote. 
19

Alternatively, the FTR Parties argue that protecting the votes of public officials 

would chill the right of citizens to challenge unlawful government conduct, and for that 

reason the anti-SLAPP statute should not apply. But the cases cited by the FTR Parties—

USA Waste of California, Inc. v. City of Irwindale (2010) 184 Cal.App.4th 53 (USA 

Waste) and Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 

181 Cal.App.4th 1207 (Graffiti Protective Coatings)—are inapposite because they 

involved actions against public entities rather than public officials and therefore were

impacted by different policy considerations. 

USA Waste noted that “[a]ctions to enforce, interpret or invalidate governmental 

laws generally are not subject to being stricken under the anti-SLAPP statute. If they 

were, efforts to challenge governmental action would be burdened significantly.” (USA 

Waste, supra, 184 Cal.App.4th at p. 65.) Citing San Ramon Valley Fire Protection Dist. 

v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 357–

358 (San Ramon), Graffiti Protective Coatings pointed out that “if a special motion to 

strike could be brought in every case where a petition for mandate seeks to challenge a 

government decision, then suits to compel public entities to comply with the law would 

be chilled.” (Graffiti Protective Coatings, supra, 181 Cal.App.4th at pp. 1219–1220.) 

San Ramon involved a suit by a fire protection district challenging a decision by a 

retirement board to increase contributions to support increased benefits. It held that the 

retirement board’s action did not constitute protected activity, reasoning: “To decide 

otherwise would significantly burden the petition rights of those seeking mandamus 

review for most types of governmental action. Many of the public entity decisions 

reviewable by mandamus or administrative mandamus are arrived at after discussion and 

a vote at a public meeting. [Citations.] If mandamus petitions challenging decisions 

reached in this manner were routinely subject to a special motion to strike . . . [,] the 

petitioners in every such case could be forced to make a prima facie showing of merit at 

the pleading stage. While that result might not go so far as to impliedly repeal the 

mandamus statutes . . . , it would chill the resort to legitimate judicial oversight over 

potential abuses of legislative and administrative power, which is at the heart of those 
20

remedial statutes. It would also ironically impose an undue burden upon the very right of 

petition for those seeking mandamus review in a manner squarely contrary to the 

underlying legislative intent behind [Code of Civil Procedure] section 425.16.” 

(San Ramon, supra, 125 Cal.App.4th at p. 357.) 

Giving anti-SLAPP protection to the votes of public officials as opposed to the 

action of a public entity will not chill the ability of citizens to challenge governmental 

action. Under USA Waste, Graffiti Protective Coatings and San Ramon, public entities 

can still be sued without the burden of the anti-SLAPP statute. Thus, we decline to strip 

public officials of anti-SLAPP protection.

3. The Illegality Exception Does not Apply.

The FTR Parties urge us to conclude that the anti-SLAPP statute does not protect 

unconstitutional votes. They rely on Flatley v. Mauro (2006) 39 Cal.4th 299, 320 

(Flatley), which stated that “where a defendant brings a motion to strike under [Code of 

Civil Procedure] section 425.16 based on a claim that the plaintiff’s action arises from 

activity by the defendant in furtherance of the defendant’s exercise of protected speech or 

petition rights, but either the defendant concedes, or the evidence conclusively 

establishes, that the assertedly protected speech or petition activity was illegal as a matter 

of law, the defendant is precluded from using the anti-SLAPP statute to strike the 

plaintiff’s action.” As a counterpunch, the Trustees claim that the Flatley rule applies 

only to criminal conduct.

We agree with the Trustees.

Our Supreme Court has not elucidated whether the illegality exception is limited 

to criminal conduct, or whether it can be extended to noncriminal conduct that is

unlawful in the sense that it violates a principle of constitutional, statutory or common 

law. However, as observed in Fremont Reorganizing Corp. v. Faigin (2011) 

198 Cal.App.4th 1153, 1169 (Fremont Reorganizing), multiple “Court of Appeal 

opinions have rejected attempts to apply the rule from Flatley . . . to noncriminal 

conduct.” The court concluded that the rule from Flatley “is limited to criminal 

conduct.” (Fremont Reorganizing, supra, 198 Cal.App.4th at p. 1169.) One of the 
21

decisions cited was Mendoza v. ADP Screening & Selection Services, Inc. (2010) 

182 Cal.App.4th 1644 (Mendoza). It concluded that “the Supreme Court’s use of the 

phrase ‘illegal’ [in Flatley] was intended to mean criminal, and not merely violative of a 

statute.” (Mendoza, supra, 182 Cal.App.4th at p. 1654.) The Mendoza court added that 

“a reading of Flatley to push any statutory violation outside the reach of the anti-SLAPP 

statute would greatly weaken the constitutional interests which the statute is designed to 

protect. As [the defendant] correctly observes, a plaintiff’s complaint always alleges a 

defendant engaged in illegal conduct in that it violated some common law standard of 

conduct or statutory prohibition, giving rise to liability, and we decline to give plaintiffs a 

tool for avoiding the application of the anti-SLAPP statute merely by showing any 

statutory violation.” (Mendoza, supra, at p. 1654.) 

We conclude that the reasoning in Fremont Reorganizing and Mendoza is sound, 

and that those cases should be followed.

4. The Anti-SLAPP Statute is not Preempted by the Supremacy Clause.

The FTR Parties contend that that application of the anti-SLAPP statute to the 

federal civil rights claims is barred by conflict and obstacle preemption. This contention 

does not withstand scrutiny.

“The supremacy clause of the United States Constitution establishes a 

constitutional choice-of-law rule, makes federal law paramount, and vests Congress with 

the power to preempt state law. [Citations.]” (Viva! Internat. Voice for Animals v. 

Addidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935 (Viva!).) 

Conflict preemption is triggered “when simultaneous compliance with both state and 

federal directives is impossible. [Citations.]” (Viva!, supra, 41 Cal.4th at p. 936.) 

Obstacle preemption arises in a particular case when a state law frustrates the objectives 

of Congress. (Ibid.) 

There is no conflict preemption here. The anti-SLAPP statute prescribes no 

procedures for debarment hearings, and therefore it does not make it impossible for the 

Trustees to comply with either the requirements of procedural due process when 
22

conducting debarment hearings or the requirements of section 1983. The FTR Parties 

offer no argument to the contrary.

This brings us to obstacle preemption.

Congress enacted section 1983 “in response to the patent inadequacy of state 

enforcement of constitutional guarantees for the newly enfranchised black citizenry.” 

(Williams v. Horvath (1976) 16 Cal.3d 834, 841 (Williams).) Its purpose is “to serve as 

an antidote to discriminatory state laws, to protect federal rights where state law is 

inadequate, and to protect federal rights where state processes are available in theory but 

not in practice[.]” (Ibid.) This purpose “may not be frustrated by state substantive 

limitations couched in procedural language.” (Ibid.; County of Los Angeles v. Superior 

Court (2006) 139 Cal.App.4th 8, 17 [“Although federal law controls the substantive 

aspects of plaintiffs’ federal civil rights claim, state rules of evidence and procedure 

apply unless application of those rules would affect plaintiffs’ substantive federal 

rights”].) For example, the Williams court held that the claim filing requirement in the 

Government Tort Claims Act “is inoperative in an action brought under section 1983” 

because that provision “‘is more than a procedural requirement, it is a condition 

precedent to [the plaintiff] maintaining an action against [the] defendants[,]’” and is “‘an 

integral part of [the] plaintiff’s cause of action.’” (Williams, supra, 16 Cal.3d at p. 842.) 

California appellate courts have held that the anti-SLAPP statute is applicable to 

claims brought in state court pursuant to section 1983. (Vergos, supra, 146 Cal.App.4th 

at p. 1392, fn. 4 [“Federal civil rights claims brought in California state courts are subject 

to [Code Civ. Proc., § 425.16 motions”]; Bradbury v. Superior Court (1996) 

49 Cal.App.4th 1108, 1117–1118 [holding that Code Civ. Proc., § 425.16 applies to a 

federal civil rights cause of action, and rejecting the argument that Code Civ. Proc., 

§ 425.16 “violates federal substantive law”].) We opt to follow the lead of prior Court of 

Appeal decisions because an anti-SLAPP motion is neither a condition precedent to nor 

an integral part of a lawsuit under section 1983. 
23

To combat California precedent, the FTR Parties cite federal cases that relied on 

an Erie16 doctrine analysis or the preemptive effect of the Bankruptcy Code when holding 

that the anti-SLAPP statute did not apply to federal claims in federal court. (Globetrotter 

Software, Inc. v. Elan Computer Group, Inc. (N.D. Cal. 1999) 63 F.Supp.2d 1127, 1128–

1130 [under the Erie doctrine, the anti-SLAPP statute applies to pendant state claims but 

not federal claims brought in federal court]; Bulletin Displays, LLC v. Regency Outdoor 

Adver., Inc. (C.D. Cal. 2006) 448 F. Supp. 2d 1172, 1182 (Bulletin Displays) [same];

17

Restaino v. Bah (In re Bah) (Bankr. 9th Cir. 2005) 321 B.R. 41, 46 [impliedly holding 

that the Bankruptcy Code preempts the application of the anti-SLAPP statute to federal 

claims in bankruptcy court]; Riese v. County of Del Norte (case No. 12 CV-03723-WHO, 

N.D. Cal. 2013) 2013 U.S. Dist. LEXIS 126351 [the anti-SLAPP statute inapplicable to 

federal claims in federal court].) Because the Erie doctrine and the Bankruptcy Code are 

not implicated, these cases are inapposite.

5. The Fourteenth Amendment Does not Prevent Anti-SLAPP Protection. 

The FTR Parties argue that conduct cannot be simultaneously protected by the 

First Amendment and prohibited by the Fourteenth Amendment and, as a consequence,

the Trustees cannot invoke the anti-SLAPP statute. Impliedly, they suggest that the anti-

 

16 Erie R.R. v. Tompkins (1938) 304 U.S. 64 (Erie).

17 In Bulletin Displays, the defendant argued that the “failure to apply the antiSLAPP statute to federal causes of action that could also be brought in state court would 

contravene Erie’s holding that, in a diversity suit, state substantive law must be applied to 

prevent ‘forum shopping.’” (Bulletin Displays, supra, 448 F.Supp.2d at p. 1181.) The 

court rejected this argument because Erie “has no application to federal question claims, 

only to state law claims in diversity actions and pendent state law claims in federal 

question cases.” (Ibid.) In dicta, the court stated without deciding, “Moreover, as the 

anti-SLAPP statute has been described as establishing a rule of ‘substance,’ rather than 

procedure, [New.Net, Inc. v. Lavasoft (C.D. Cal. 2004) 356 F.Supp.2d 1090, 1099 

(New.Net)], applying it to federal claims arguably would permit state law to affect and 

alter the substance of federal claims in violation of the Supremacy Clause of the 

Constitution.” (Bulletion Displays, supra, 448 F.Supp.2d at pp. 1181–1182.) This dicta 

is not persuasive because New.Net was an Erie doctrine case, and it therefore does not 

support a finding that the anti-SLAPP statute is substantive under a preemption analysis. 

(New.Net, supra, 356 F.Supp.2d at p. 1099.) 
24

SLAPP statute does not apply because the Trustees’ votes have been stripped of First 

Amendment protection by the Fourteenth Amendment. They make this argument in 

connection with their discussion of preemption, yet this cannot possibly be a preemption 

issue because it does not involve a conflict between state and federal law. Rather, as 

posed, it involves a conflict between two amendments to the United States Constitution. 

We therefore address this issue separately.

In support of their novel argument, the FTR Parties cite a single case, United 

States v. Yonkers (2nd Cir. 1988) 856 F.2d 444, 457 (Yonkers). In Yonkers, city council 

members were held in contempt of court for failing to vote in compliance with an order 

directing the city to adopt legislation designed to remedy racial segregation in housing 

and schools. (Yonkers, supra, 856 F.2d at pp. 447–452.) On appeal, the city council 

members asserted a First Amendment defense. The Yonkers court rejected the defense, 

stating: “Even if we acknowledge that the act of voting has sufficient expressive content 

to be accorded some First Amendment protection as symbolic speech, the public interest 

in obtaining compliance with federal court judgments that remedy constitutional 

violations unquestionably justifies whatever burden on expression has occurred. 

[Citation.] The council members remain free to express their views on all aspects of 

housing in Yonkers. But just as the First Amendment would not permit them to incite 

violation of federal law, [citations], it does not permit them to take action in violation of 

such law[.]” (Yonkers, supra, at p. 457.) 

We find nothing in Yonkers that is relevant here. It does not stand for the 

proposition that a state statute cannot require a prima facie showing of merit before a 

claim arising from certain categories of speech goes forward. Rather, Yonkers simply 

establishes that the First Amendment will not be a defense if policy demands that free

speech rights yield to other considerations. 

C. There is no Probability of Prevailing on the Procedural Due Process Claim.

The Trustees contend that they are entitled to qualified immunity with respect to 

the due process claim. This contention bears out.
25

“[G]overnment officials performing discretionary functions, generally are shielded 

from liability for civil damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have 

known. [Citations.]” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818.) “Qualified 

immunity balances two important interests—the need to hold public officials accountable 

when they exercise power irresponsibly and the need to shield officials from harassment, 

distraction, and liability when they perform their duties reasonably. The protection of 

qualified immunity applies regardless of whether the government official’s error is ‘a 

mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’ 

[Citation.]” (Pearson v. Callahan (2009) 555 U.S. 223, 231.)

When examining qualified immunity, a court must determine whether the state of 

the law at the time of the constitutional deprivation gave officials fair warning that 

particular conduct was unconstitutional. (Ellins v. City of Sierra Madre (9th Cir. 2013) 

710 F.3d 1049, 1064 (Ellins); Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1075 [“For a 

constitutional right to be clearly established, ‘its contours “must be sufficiently clear that 

a reasonable official would understand that what he is doing violates that right”’ at the 

time of his conduct”].)

California case law provides that the standard of impartiality required at an 

administrative hearing is less exacting than what is required in a judicial proceeding. 

(Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483 (Nasha).) According to 

Nasha, “It is recognized that ‘administrative decision makers are drawn from the 

community at large. Especially in a small town setting they are likely to have knowledge 

of and contact or dealings with parties to the proceeding. Holding them to the same 

standard as judges, without a showing of actual bias or the probability of actual bias, may 

discourage persons willing to serve and may deprive the administrative process of 

capable decision makers.’ [Citation.]” (Ibid.) Thus, “in order to prevail on a claim of 

bias violating fair hearing requirements,” a plaintiff “must establish ‘“an unacceptable 

probability of actual bias on the part of those who have actual decisionmaking power 

over their claims.”’ [Citation.]” (Ibid.) 
26

In Underground Contractors, the court explained, “‘[B]ias in an administrative 

hearing context can never be implied, and the mere suggestion or appearance of bias is 

not sufficient. [Citation.] It is also well established that a party is not denied an impartial 

adjudicator merely because an administrative entity performs both the functions of 

prosecutor and judge. [Citation.] Overlapping investigatory, prosecutorial and 

adjudicatory functions do not necessarily deny a fair hearing and are common before 

most administrative boards. [Citations.]’ [Citation.]” (Underground Contractors, supra, 

108 Cal.App.4th at p. 549.) With these considerations in mind, the Underground 

Contractors court held that city council members who were presiding over a debarment 

hearing were not per se biased because the contractor had sued the city. The court noted 

that the city council members had no pecuniary interest in the lawsuit, and it concluded 

by stating that when “‘an administrative body has a duty to act, and is the only entity 

capable of acting, the fact that the body may have an interest in the result does not 

disqualify it from acting. The rule of necessity precludes a claim of bias from the 

structure of the process.’ [Citation.]” (Id. at p. 550.) 

Given Nasha and Underground Contractors, and given the absence of any cases 

prohibiting the Trustees from presiding over a debarment hearing in this factual context, 

they contend that they could not have known that authorizing a cross-complaint in the 

Hickman Action disqualified them from presiding over the debarment hearing. The FTR

Parties, on the other hand, contend that the Trustees violated the clearly established rule 

that a contractor facing debarment has a constitutional right to an impartial decision

maker. (Golden Day School, Inc. v. State Dept. of Education (2000) 83 Cal.App.4th 695, 

709 (Golden Day).) 

There was no evidence of actual bias presented in connection with the first antiSLAPP motion, which predated the First Amendment retaliation claim. At most, this is a 

“probability of bias” case. While there is a general rule set forth in Golden Day requiring 

that a decision maker be impartial, there are no state or federal cases, nor are there any 

statutes, specifically on point. The emergent question, then, is whether the Trustees 

should have known that procedural due process required that they recuse themselves from 
27

the debarment hearing because there was an unacceptable probability of bias. We think 

not. They are called upon to conduct the District’s business and make decisions about 

contractors and projects. Undeniably, they have overlapping investigatory and 

adjudicatory function. Per the Underground Contractors court, such an overlapping of 

function does not necessarily deny a fair hearing. Significantly, as that case establishes, 

litigation between a public agency and an administrative litigant does not disqualify the 

public agency from acting. Assuming without deciding that constitutional law required 

the Trustees to disqualify themselves, it goes too far to charge the Trustees with that 

knowledge. If they made a mistake of law, it was not so obvious as to defeat qualified 

immunity. This is because the precise contours of due process in the administrative 

context are flexible and ever evolving. 

We reach the same conclusion regarding the Trustees’ failure to rule on

affirmative defenses. The FTR Parties have not cited any cases that required a ruling, 

and we are aware of none. A review of the administrative record reveals that they were 

permitted to present evidence on their affirmative defenses, and the Trustees voted based 

on the entire record. This procedure allowed the FTR Parties to preserve their affirmative 

defenses for judicial review. While the FTR Parties were entitled to procedural 

safeguards, “there [was] no constitutional entitlement to the full panoply of judicial trial 

procedures” (Underground Contractors, supra, 108 Cal.App.4th at pp. 542–543). Thus, 

assuming the law required a ruling on the affirmative defenses, the Trustees cannot be 

charged with anticipating such a rule.

D. There is a Probability of Prevailing on the Retaliation Claim.

When a plaintiff sues public officials under section 1983 and alleges retaliation for 

the exercise of First Amendment rights, the plaintiff “must establish that (1) it engaged in 

expressive conduct that addressed a matter of public concern; (2) the government 

officials took an adverse action against it; and (3) its expressive conduct was a substantial 

or motivating factor for the adverse action. [Citation.]” (Alpha Energy Savers, Inc. v. 

Hansen (9th Cir. 2004) 381 F.3d 917, 923 (Alpha).) 
28

1. Expressive Conduct that Addressed a Matter of Public Concern.

Whether “speech addresses a matter of public concern must be determined by the 

content, form, and context of a given statement, as revealed by the whole record.” 

(Connick v. Myers (1983) 461 U.S. 138, 147, 148 [stating test for analyzing “[w]hether 

an employee’s speech addresses a matter of public concern”].) Speech involves matters 

of public concern when it relates to any matter of political, social, or other concern to the 

community, or when it is a subject of legitimate news interest. (Lane v. Franks (2014) 

134 S.Ct. 2369, 2380; Snyder v. Phelps (2011) 562 U.S. 443, 452 [131 S.Ct. 1207, 1216]

[“[s]peech deals with matters of public concern when it can ‘be fairly considered as 

relating to any matter of political, social, or other concern to the community,’” or when it 

“‘is a subject of legitimate news interest’”].) “On the other hand, speech that deals with 

‘individual personnel disputes and grievances’ and that would be of ‘no relevance to the 

public’s evaluation of the performance of governmental agencies’ is generally not of 

‘public concern.’ [Citation.]” (Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 

973 (Coszalter).) 

When government employees speak about corruption, wrongdoing, misconduct or

wastefulness by other government employees, that speech is a matter of public concern. 

(Alpha, supra, 381 F.3d at p. 926.) This “rule applies to invidious discrimination as 

well—whether it consists of a single act or a pattern of conduct. Disputes over racial, 

religious, or other such discrimination by public officials are not simply individual 

personnel matters. They involve the type of governmental conduct that affects the 

societal interest as a whole—conduct in which the public has a deep and abiding interest. 

Litigation seeking to expose such wrongful governmental activity is, by its very nature, a 

matter of public concern.” (Id. at pp. 926–927.)

We conclude that Katbi’s letter dated October 5, 2011, was a matter of public 

concern because it sought to expose racism, retaliation, corruption and fraud by Payinda 

in connection with a public project, and because it accused the District of acting in bad 

faith when rejecting a low bid. Also, the letter responded to newspaper articles, which 
29

demonstrated that the topic of the FTR Parties’ reputation and performance on public 

contracts was newsworthy.

2. Adverse Action.

The trustees voted to debar the FTR Parties. That qualifies as adverse action 

because it is reasonably likely to deter their complaints about government corruption and 

misconduct. (Coszalter, supra, 320 F.3d at p. 970 [in a First Amendment retaliation case, 

an adverse action “is an act that is reasonably likely to deter” a person “from engaging in 

constitutionally protected speech”].)

The Trustees contend that due to the trial court’s decision to grant the petition for 

writ of mandate and undo the debarment, there is no official action upon which the FTR 

Parties’ claim can be based. They cite Martinez v. California (1980) 444 U.S. 277 

(Martinez) and Ketchum v. County of Alameda (9th Cir. 1987) 811 F.2d 1243 (Ketchum) 

but neither case is apposite. 

In Martinez, a teenage girl was murdered by a parolee. Her survivors sued the 

parole board under section 1983 and alleged that when it released the parolee, it subjected 

the girl to a deprivation of life without due process of law. The court rejected the theory 

on the grounds that the girl’s death was too remote a consequence of the parole board’s 

actions. In particular, the court noted that the parolee was not an agent of the parole 

board, and the parole board was not aware that the girl faced any special danger. 

(Martinez, supra, 444 U.S. at pp. 284–285.)

After the plaintiff in Ketchum was raped by an inmate who escaped from a 

rehabilitation facility, she sued various entities and officers under section 1983. She 

claimed that they were grossly negligent in failing to maintain security, and they 

therefore deprived her of the constitutional right to privacy and security of property. 

(Ketchum, supra, 811 F.2d at p. 1244.) Citing Martinez, the Ketchum court held the 

plaintiff did not have a viable federal civil rights claim because the state did not deprive 

her of a constitutional right. (Ketchum, supra, at p. 1247.)

The Trustees’ votes led directly to the FTR Parties’ injuries, so it cannot 

reasonably be argued that their actions were too remote. In reaching this conclusion, we 
30

reject the Trustees’ suggestion that they cannot be held liable because it was the District 

that debarred FTR, not them. It was explained in Gilbrook v. City of Westminster (9th 

Cir. 1999) 177 F.3d 839, 854 (Gilbrook) that anyone who causes a citizen to be subjected 

to a constitutional deprivation is liable under section 1983. The “‘requisite causal 

connection can be established not only by some kind of direct personal participation in 

the deprivation, but also by setting in motion a series of acts by others which the actor 

knows or reasonably should know would cause others to inflict the constitutional injury.’

[Citation.]” (Gilbrook, supra, 177 F.3d at p. 854.)

To the degree the Trustees suggest that the writ of mandate erases any misconduct, 

the suggestion lacks legal support.

3. Substantial or Motivating Factor.

Federal law establishes that to prove that First Amendment “retaliation was a 

substantial or motivating factor behind an adverse employment action, a plaintiff may 

introduce evidence that (1) the speech and adverse action were proximate in time, such 

that a jury could infer that the action took place in retaliation for the speech; (2) the 

employer expressed opposition to the speech, either to the speaker or to others; or (3) the 

proffered explanations for the adverse action were false and pretextual.” (Ellins, supra, 

710 F.3d at p. 1062.) 

Here, in a letter dated October 17, 2011, the District notified FTR and Katbi that 

the Board would be holding a hearing in December 2011 to determine whether to debar 

them for up to five years. That letter was issued soon after Katbi’s October 5, 2011, 

letter. On January 10, 2012, after a hearing, the Trustees’ committee recommended 

debarment. Less than a month later, the Trustees voted to debar FTR for five years. 

Because the District’s letter, the recommendation and the debarment were so close in 

time to Katbi’s letter, a jury could infer that the decision to hold a hearing and consider 

debarment was retaliation for Katbi’s speech. (Coszalter, supra, 320 F.3d at p. 978 

[adverse action taking place three to eight months after the plaintiff speech supports an 

inference of retaliation].) 

Other facts bolster the inference of retaliation. 
31

For example, the committee report stated: “FTR . . . argues that it was targeted by 

[Payinda] and that [Payinda] made racist remarks about FTR including referring to it as 

‘sand niggers and towel heads.’ The Committee finds such language patently offensive 

and inexcusable. [Payinda], the person who FTR alleges said such things, vehemently 

denies he ever made such comments. . . . The Committee also notes that FTR made the 

exact same allegations on another public works project for the Rio School District in 

Oxnard, California[,] which took place over 10 years ago. . . . [¶] . . . [¶] While the 

District would never condone any racist conduct, it is difficult for the Committee to 

believe that on two completely separate projects in two different counties and years apart, 

two different persons would undertake to reject work and harass FTR based solely on 

racial bias[,] and that these two persons would use identical racist remarks against FTR. 

However distasteful such comments are, what is also distasteful is a contractor’s apparent 

practice of using the allegation of racism to deflect responsibility for the quality of its 

work.” Thus, it is apparent that the committee expressed opposition to some of Katbi’s 

statements. 

Furthermore, in the context of the other facts mentioned, the Board conducted the 

debarment proceeding in a manner suggesting that it stacked the deck against the FTR 

Parties. It refused a continuance that would have enabled the FTR Parties to prepare an 

expert regarding charge III; at the committee hearing on January 10, 2012, the committee 

members failed to discuss the elements of fraud; the committee members refused to rule 

on the affirmative defenses; and the Trustees voted to debar for five years instead of 

following the committee recommendation that the FTR Parties be debarred for only three 

years. 

To block our consideration of the letter, the Trustees cite Continental Ins. Co. v. 

Lexington Ins. Co. (1997) 55 Cal.App.4th 637, 646 [a plaintiff is not “allowed to amend 

the complaint to state a fact directly contradictory to one stated previously”], Vallejo 

Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946 [“a court is 

“‘not bound to accept as true allegations contrary to factual allegations in former pleading 

in the same case”’”], and Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425–426 
32

[allegations in the original complaint rendering it vulnerable to demurrer cannot be 

omitted without explanation]. According to the Trustees, the FAC and the TAC are 

fatally inconsistent regarding the motive for debarment, i.e., whether it was motivated by 

the Los Angeles Times articles or Katbi’s letter. 

We perceive no inconsistency. The FAC alleged facts related to the Los Angeles 

Times articles, but it did not allege that the debarment was motivated by those articles. 

At most, the FAC could be construed as implying that the articles were a motivating 

factor. That does not contradict the allegation in the TAC that the debarment was 

retaliation for Katbi’s letter. The Trustees’ real complaint seems to be that the TAC is 

inconsistent with the FTR Parties’ ex parte application for a temporary restraining order/

injunction and motion for peremptory writ, in which they argued that the articles 

prompted an investigation, and that the Board debarred the FTR Parties to obtain good 

press. But the Trustees have cited no rule that would penalize the FTR Parties by 

forbidding them from alleging something different in a subsequently amended complaint. 

And, in any event, the FTR Parties never argued that the Los Angeles Times articles were 

the only motivating factor, which allows room for additional motivating factors.

The Trustees’ next argument is also unavailing. They posit that there is no 

likelihood of the FTR Parties prevailing because the evidence does not suggest that the 

District’s staff was motivated by Katbi’s letter to recommend debarment proceedings. 

But a press release from the District indicated that the Board had sent letters to two major 

District contractors instituting proceedings that could potentially terminate their contracts 

with the District’s building program. Also according to the press release, which was 

issued after Katbi’s October 5, 2011, letter was sent, the Board had instructed its 

Chancellor to take whatever actions were necessary to reform the building program, root 

out mismanagement and waste, and ensure that taxpayers were getting full value for the 

money invested in community college campuses. From the timing of the letter, press 

release, debarment hearing and debarment, a jury could infer that the District’s staff 
33

initiated charges to further the Trustees’ agenda of retaliating against the FTR Parties for 

Katbi’s speech.18

The Trustees aver that FTR’s claim is baseless because there is no evidence that 

they were aware of the letter. We note, however, that the letter was addressed to the 

attention of each individual Trustee. A jury would be entitled to infer that the Trustees 

knew of the letter.

Our task is to determine whether the FTR Parties’ claim has minimal merit. 

(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 [only a cause of action 

that arises from protected speech and “lacks even minimal merit—is a SLAPP”]; 

Navellier, supra, 29 Cal.4th at p. 89; Soukup v. Law Offices of Herbert Hafif (2006) 

39 Cal.4th 260, 278–279.)19 Based on the law and the state of the evidence, there is 

enough to suggest First Amendment retaliation. 

4. Defenses.

Even if they retaliated against the FTR Parties, the Trustees contend that they have 

two defenses. At this stage of the proceedings, we cannot concur.

If a plaintiff makes a sufficient showing of retaliation, then the burden shifts to the 

government to show that it had an adequate justification for treating the plaintiff

differently from other members of the general public, or that it would have taken the 

adverse action even absent the protected speech. (Robinson v. York (9th Cir. 2009) 

566 F.3d 817, 822.) The first defense is based on the balancing test in Pickering v. Board 

of Education (1968) 391 U.S. 563, 568 (Pickering), and the second defense is based on 

 

18 In light of our conclusion that the evidence supported a retaliation claim based on 

Katbi’s letter, we need not consider FTR’s alternative contention that the Trustees 

retaliated based on statements made by FTR at the debarment hearing. 

19 Because they have not cited any supporting law, we are unmoved by the Trustees’ 

suggestion that FTR should be estopped from relying on the letter in support of its claim 

because it did not submit the letter when it sought to enjoin the debarment hearing, and 

because the FAC did not allege that the letter prompted bias in the Trustees. (Nelson v. 

Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [“‘When an appellant 

fails to raise a point, or asserts it but fails to support it with reasoned argument and 

citations to authority, we treat the point as waived’”].)
34

the mixed motive test in Mt. Healthy City School District Board of Education v. Doyle

(1977) 429 U.S. 274, 287 (Mt. Healthy).

Pursuant to the Pickering defense, a court must balance the right of a person to 

make statements against the interest of the state, as an employer, in promoting the 

efficiency of the public services it performs. (Rankin v. McPherson (1987) 483 U.S. 378, 

388.) “Application of this balancing test entails a factual inquiry into such matters as 

whether the speech (i) impairs discipline or control by superiors, (ii) disrupts co-worker 

relations, (iii) erodes a close working relationship premised on personal loyalty and 

confidentiality, (iv) interferes with the speaker’s performance of her or his duties, or 

(v) obstructs the routine operation of the office. The ‘manner, time, and place’ in which 

the speech occurred also constitute relevant considerations.” (Rendish v. City of Tacoma

(9th Cir. 1997) 123 F.3d 1216, 1224–1225.) “Disruption must be ‘actual, material and 

substantial,’ not ‘imagined.’ [Citation.] However, the employer need not ‘allow events 

to unfold to the extent that the disruption of the office and the destruction of working 

relationships is manifest before taking action.’ [Citation.] ‘When close working 

relationships are essential to fulfilling public responsibilities, a wide degree of deference 

to the employer’s judgment is appropriate.’ [Citation.]” (Id. at p. 1225; Gray v. County 

of Tulare (1995) 32 Cal.App.4th 1079, 1091–1095.) The “‘state interest element of the 

test focuses on the effective functioning of the public employer’s enterprise. Interference 

with work, personnel relationships, or the speaker’s job performance can detract from the 

public employer’s function; avoiding such interference can be a strong state interest.’ 

[Citation.]” (Id. at p. 1092.)

Below, the Trustees did not raise either the Pickering or Mt. Healthy defenses. On 

appeal, they cite no evidence establishing that speech such as Katbi’s letter disrupts the 

District’s offices, destroys working relationships, etc. Nor do they cite evidence that they 

would have taken the same action regardless of whether they harbored a retaliatory 

motive. We conclude that the Trustees failed to establish that either of these defenses 

apply. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [points not 

raised in the trial court will not be considered].)
35

5. Qualified Immunity.

The Trustees argue that they are entitled to qualified immunity because there was 

no clearly established indication that the discretionary decision to vote to debar the FTR 

Parties violated any constitutional rights. This argument misstates the issue. The issue is 

whether it was clearly established that Katbi’s letter addressed an issue of public concern, 

and that it was unconstitutional to debar the FTR Parties in retaliation for Katbi’s exercise 

of his First Amendment rights in that letter.

Here, the Trustees had fair warning at the time they voted to debar the FTR Parties 

that it could not do so in retaliation for Katbi’s letter. Case law established that 

independent contractors enjoy First Amendment protection (Bd. of County Comm’rs v. 

Umbehr (1996) 518 U.S. 668, 685 (Umbehr)), and that speech addresses a matter of 

public concern if it relates to any matter of political, social or other concern to the 

community such as corruption, wrongdoing or misconduct by government agents, or if it 

was a subject of legitimate news interest. (Sydner, supra, 562 U.S. at p. 452; Alpha, 

supra, 381 F.3d at p. 926.) It also established that a public official cannot retaliate 

against a public contractor for exercising its First Amendment rights. (Id. at p. 923; 

Umbehr, supra, 518 U.S. at p. 685 [a public entity cannot terminate a preexisting 

relationship with an independent government contractor in retaliation for exercising First 

Amendment rights].) 

6. Absolute Immunity.

Under federal jurisprudence, judges have absolute immunity from suit under

section 1983. (Cleavinger v. Saxner (1985) 474 U.S. 193, 199.) This immunity has been 

extended “to certain others who perform functions closely associated with the judicial 

process” such as lawyers and witnesses. (Id. at p. 200.) Per the language of Butz v. 

Economou (1978) 438 U.S. 478, 512 (Butz), absolute immunity is “necessary to assure 

that judges, advocates, and witnesses can perform their respective functions without 

harassment or intimidation.”

Immunity is justified because the “safeguards built into the judicial process tend to 

reduce the need for private damages actions as a means of controlling unconstitutional 
36

conduct. The insulation of the judge from political influence, the importance of 

precedent in resolving controversies, the adversary nature of the process, and the 

correctability of error on appeal are just a few of the many checks on malicious action by 

judges. Advocates are restrained not only by their professional obligations, but by the 

knowledge that their assertions will be contested by their adversaries in open court. 

Jurors are carefully screened to remove all possibility of bias. Witnesses are . . . subject 

to the rigors of cross-examination and the penalty of perjury. Because these features of 

the judicial process tend to enhance the reliability of information and the impartiality of 

the decisionmaking process, there is a less pressing need for individual suits to correct 

constitutional error.” (Butz, supra, 438 U.S. at p. 512.)

We conclude that the Trustees are not entitled to absolute immunity. Unlike a 

judge, who would be subject to disqualification under Code of Civil Procedure sections

170.1 and 170.6 if he or she was biased against a party, the Trustees were not subject to 

disqualification. The result in this case was that the Trustees, having authorized a lawsuit 

against FTR, were in the position of presiding over issues that they had arguably

prejudged. Prehearing discovery was not permitted. A review of the committee’s ruling 

and findings indicates that it lacked legal training and was essentially indifferent to legal 

precedent. Instead of having a command of the legal issues presented, the committee

relied heavily on Orbach and Goulet for guidance and therefore lacked the independence 

of thought that is the hallmark of judicial office. Thus, we conclude that the debarment 

hearing lacked essential safeguards necessary to reduce the need for private damages 

actions as a means for controlling unconstitutional conduct. 

Additionally, while a judge does no more than enforce the law or preside over

disputes between third parties, the Trustees decided whether the District, as a consumer 

of construction services and a participant in the marketplace, would consider bids from 

the FTR Parties for five years. In that sense, the Trustees did not perform a function that 

is closely associated with the judicial process. A statement by Trustee Park during the 

hearing before the committee highlights the point. She stated, “You know, we’re not 
37

lawyers; we’re not judges here. We’re trying to do the best . . . for our constituents in 

protecting the public works in our contracts.” 

The Trustees suggest that Butz and Buckles v. King County (9th Cir. 1999) 

191 F.3d 1127 (Buckles) dictate a finding of absolute immunity. We disagree because 

they are materially distinguishable. At issue in Butz was an administrative hearing 

conducted before a hearing officer who was enforcing the law rather than deciding 

whether a public entity would enter into future public contracts with a defendant. Unlike 

the Trustees, who are appointed, the hearing officer in Butz was insulated from political 

influence. Last, the parties in Butz had a right that the FTR Parties did not have, i.e., the 

parties in Butz were entitled to know the findings and conclusions on all of the issues of 

fact, law and discretion. (Butz, supra, 438 U.S. at pp. 512–513.) The proceedings in 

Buckles reflected “the same characteristics of the judicial process identified as sufficient 

in Butz.” (Buckles, supra, 191 F.3d at p. 1134.) Also, the procedures in Buckles

provided “for disqualification of the Board members for bias and prejudice.” (Id. at 

p. 1134.) No such procedure was available here.

V. The Official Capacity Section 1983 Claims; the Taxpayer Claim.

Pursuant to taxpayer claim in the FAC, the FTR Parties sought to enjoin the 

District from unlawfully debarring the FTR Parties and violating its state and federal 

constitutional rights.20 As well, the FAC alleged: “There is an actual controversy 

between plaintiffs and defendants concerning their respective rights and duties in that 

plaintiffs contend that the policies and practices of defendants . . . are in violation of state 

and federal law and contrary to the factual circumstances, as alleged herein, whereas 

defendants contend in all respects to the contrary.” 

 

20 Code of Civil Procedure section 526a provides in relevant part: “An action to 

obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or 

injury to, the estate, funds, or other property of a county, town, city or city and county of 

the State, may be maintained against any officer thereof, or any agent, or other person, 

acting in its behalf, either by a citizen resident therein, or by a corporation, who is 

assessed for and is liable to pay, or, within one year before the commencement of the 

action, has paid, a tax therein.”
38

In the procedural due process claim in the FAC, the FTR Parties were seeking 

relief that would enjoin the Trustees from “engaging in each of the unlawful practices, 

policies, customs and usages” alleged, and from “using any of the charges or accusations 

asserted in the debarment proceeding to take any negative actions against [the FTR 

Parties], including but not limited to initiating further debarment proceedings . . . , 

seeking to label [the FTR Parties] . . . as ‘non-responsible’ bidders with respect to any 

[District] projects, invoking the ‘convenience’ clause to terminate any outstanding 

contract, or making any public or official statements [about the FTR Parties] or any of 

their agents or principals[.]” 

The TAC requested the same relief. Thus, the relief was requested in part due to 

the First Amendment retaliation claim.

Fairly understood, the taxpayer and official capacity claims arise out of the

debarment hearing, the debarment and the termination of FTR’s contracts. These were 

acts of governance by the District. Applying the anti-SLAPP statute to these types of acts 

would chill challenges to governmental action. Based on San Ramon, we hold that the 

anti-SLAPP statute does not apply.

VI. The Interference Claims; the Negligence Claim.

The Trustees contend that the second anti-SLAPP motion should have been 

granted as to the state tort claims because they are immune from liability under 

Government Code sections 820.2 and 820.9.

We agree.

A. Immunity for Act of Discretion.

“Except as otherwise provided by statute, a public employee is not liable for an 

injury resulting from his act or omission where the act or omission was the result of the 

exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. 

Code, § 820.2.) 

The FTR Parties argue that the Trustees’ decision to debar nonresponsible bidders 

is not discretionary. We cannot concur. Pursuant to Public Contract Code section 20651, 

subdivision (b), the governing board of a community college district must award a 
39

contract for a public project to the lowest responsible bidder. The District has discretion 

to determine which bidders are responsible. (Stacy & Witbeck, Inc. v. City and County of 

San Francisco (1995) 36 Cal.App.4th 1074, 1094, fn. 9 [“municipalities have discretion 

to determine which bidders are ‘responsible’”].) Debarment is “a necessary means to 

enable the contracting governmental agency to deal with irresponsible bidders and 

contractors, and to administer its duties with efficiency. [Citation.]” (Golden Day, 

supra, 83 Cal.App.4th at p. 704.) Viewed properly, debarment is not an obligation; it is a 

discretionary tool at the District’s disposal.

Regardless of whether the debarment was discretionary, the FTR Parties contend 

that it does not fall within Government Code section 820.2 because it was an operational 

decision rather than a policy decision. 

Under California common law, a governmental official had “personal immunity 

from lawsuits challenging his or her discretionary acts within the scope of authority. 

[Citation.]” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 979 (Caldwell) [holding that 

the votes by school board members not to renew the contract of a superintendant 

qualified as discretionary acts within the meaning of Gov. Code, § 820.2].) This 

immunity protected an official even if he or she acted with malice. (Caldwell, supra, 

10 Cal.4th at p. 979.) When the Legislature enacted the Tort Claims Act, it codified the 

traditional immunity for discretionary acts in Government Code section 820.2. 

(Caldwell, supra, at p. 980.) Our Supreme Court explained that the “immunity is 

reserved for those basic policy decisions which have . . . been [expressly] committed to 

coordinate branches of government[.]” (Caldwell, supra, at p. 981.) In contrast, “there is 

no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a 

basic policy already formulated. [Citation.]” (Ibid.) Consequently, “immunity applies 

only to deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] 

risks and advantages . . . took place. The fact that an employee normally engages in 

“discretionary activity” is irrelevant if, in a given case, the employee did not render a 

considered decision. [Citations].’ [Citation.]” (Ibid.) Boiled down, case law 

distinguishes between “policy and operational judgments.” (Ibid.)
40

Five years after Caldwell, our Supreme Court decided Barner v. Leeds (2000) 

24 Cal.4th 676, 684. In that case, the court held that Government Code section 820.2 

could not be asserted as a defense to a claim that a deputy public defender committed 

legal malpractice. (Id. at pp. 679–680.) The opinion rested on the premise that “the acts 

or omissions of a deputy public defender in representing a defendant in a criminal action 

do not involve the type of basic policy decisions that are insulated from liability[.]” 

(Ibid.) 

Our attention now switches to the world of public contracts.

Citing a string of cases and Government Code section 820.2, Pacific Architects 

Collaborative v. State of California (1979) 100 Cal.App.3d 110, 121 (Pacific Architects), 

stated, “Insofar as the decision not to award [a] contract was based on the exercise of 

discretion by the state employees, governmental immunity precludes the imposition of 

any liability based on a tort theory. [Citations.]” The court added that the “determination 

of the identity of the lowest responsible bidder [citation] and the decision of whether to 

award the contract to any of the bidders or reject all bids [citation] involves the exercise 

of discretion[,]” and Government Code section 820.2 applies. (Pacific Architects, supra, 

100 Cal.App.3d at p. 189.) In Curcini v. County of Alameda (2008) 164 Cal.App.4th 629 

(Curcini), the court held that the decision to reject all bids for a chaplain services contract 

at a jail was protected by Government Code section 820.2. Curcini relied, in part, on 

Monterey Mechanical Co. v. Sacramento Regional County Sanitation Dist. (1996) 44 

Cal.App.4th 1391, 1413, which stated, “Because the award of a public contract involves 

the exercise of discretion, the government employees and entities involved are immune 

from liability.”

Under scrutiny now is debarments.

As explained in Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 

195 Cal.App.3d 1331, 1341–1342, “A determination that a bidder is responsible is a 

complex matter dependent, often, on information received outside the bidding process 

and requiring, in many cases, an application of subtle judgment. Not only is the process 
41

complex, but the declaration of nonresponsibility may have an adverse impact on the 

professional or business reputation of the bidder.”

In the words of Golden Day, “Debarment is never a matter of small moment.” 

(Golden Day, supra, 83 Cal.App.4th at p. 703.) Quoting a federal case dating back to 

1970, Golden Day adopted the recognition that the consequences of debarment “‘will 

vary, depending upon multiple factors: the size and prominence of the contractor, the 

ratio of his government business to non-government business; the length of his 

contractual relationship with government; his dependence on that business; his ability to 

secure other business as a substitute for government business. . . . The impact of 

debarment on a contractor may be a sudden contraction of bank credit, adverse impact on 

market price of shares of listed stock, if any, and critical uneasiness of creditors 

generally, to say nothing of “loss of face” in the business community. These 

consequences are in addition to the loss of specific profits from the business denied as a 

result of debarment.’” (Id. at pp. 703–704.)

Based on the foregoing authorities, we conclude that the Trustees’ decision to 

debar the FTR Parties involved a discretionary policy decision as to whether to trust the 

FTR Parties with public projects and millions of dollars for five years. The decision 

required the Trustees to form a considered opinion about the impact of debarring or not 

debarring the FTR Parties on the District and its existing contracts. Other than requiring 

a fair hearing before a debarment, it would be unseemly for courts to interfere in the 

District’s debarment decisions (Caldwell, supra, 10 Cal.4th at p. 981) because a 

debarment occurs at the planning stage, i.e., it constitutes a plan regarding who will or 

will not be eligible to build public projects. If the decision not to award a public contract 

is protected by immunity, as established in Pacific Architects and Curcini, then certainly 

the decision to debar a contractor and not award any contracts to that contractor for a set 

period of time is protected by immunity.21

 

21 Moreover, we find no meaningful distinction between this case and Ogborn v. City 

of Lancaster (2002) 101 Cal.App.4th 448. There, the court held that a public official 

charged with administering a city’s nuisance abatement program was entitled to 
42

B. Immunity for Act of a Public Entity.

Government Code section 820.9 provides in relevant part that “members of 

governing boards of . . . local public entities . . . are not vicariously liable for injuries 

caused by the act or omission of the public entity or advisory body. Nothing in this 

section exonerates an official from liability for injury caused by that individual’s own 

wrongful conduct.” (Gov. Code, § 820.9.) A local public entity “includes a county, city, 

district, public authority, public agency, and any other political subdivision or public 

corporation in the State, but does not include the State.” (Gov. Code, § 900.4.) Under 

these statutes the District is a local public entity, and the Trustees are therefore members 

of a governing board of a local public entity.

We conclude that the Trustees are entitled to immunity. The disruption of FTR’s 

contracts and relationships was caused by the debarment, which was an action taken by 

the District. Through its interference claims, the FTR Parties seek to hold the Trustees 

vicariously liable for the District’s action. 

The FTR Parties urge us to conclude that the Trustees are being sued not for the 

debarment by the District but for their own wrongful conduct in casting votes designed to 

debar them without procedural due process and in retaliation for Katbi’s exercise of First 

Amendment rights. We decline. “Courts are reluctant to attribute to the Legislature an 

intent to create ‘an illogical or confusing scheme’ [citation]; legislative policy is best 

effectuated by avoiding those constructions which lead to mischief or absurdity.” 

(People v. Jeffers (1987) 43 Cal.3d 984, 998–999.) If we were to construe the statute as 

the FTR Parties suggest, then the exception would swallow the rule. Even if the 

members of governing boards could not be sued for the acts of local public entities, they 

could be sued for causing those acts, and their exposure to liability would be no different 

than if the immunity provided in Government Code section 820.9 did not exist. 

 

immunity after “making the discretionary policy decision to declare [a property] a 

nuisance.” (Id. at p. 461.) Debarring a contractor is no less a policy decision than 

declaring that a nuisance exists.
43

VII. Attorney Fees.

Subdivision (c)(1) of the anti-SLAPP statute provides that if the trial court “finds 

that a special motion to strike is frivolous or is solely intended to cause unnecessary 

delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing 

on the motion, pursuant to [Code of Civil Procedure] Section 128.5.” Based on this 

statutory provision, the trial court awarded attorney fees. This was error. 

Code of Civil Procedure section 128.5, subdivision (b)(2) defines frivolous to 

mean “totally and completely” without merit, or for the “sole” purpose of harassing the 

opposing party. “When a motion has partial merit, it is not ‘totally and completely’

without merit, nor can it be said that its ‘sole’ purpose is to harass.” (Gerbosi v. Gaims, 

Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.)22 

This opinion establishes that the first anti-SLAPP motion should have been 

granted as to the personal capacity due process claim. Thus, the motion had at least 

partial merit, and it was not frivolous.

VIII. The Trial Judge.

The Board and Trustees request that we “consider whether in the interests of 

justice [we] should direct that further proceedings be heard before a trial judge other 

than” the trial judge who ruled on their motions. (Code Civ. Proc., § 170.1, subd. (c).) 

They contend that disqualification is mandated because the trial judge demonstrated 

animus inconsistent with judicial objectivity and, therefore, a reasonable man would 

entertain doubts concerning the trial judge’s impartiality. (People v. Enriquez (2008) 160 

 

22 The FTR Parties suggest, and the trial court found, that the frivolous nature of the 

first anti-SLAPP motion is established, in part, because the District and Trustees violated 

a stipulation. After the FAC was filed, the parties stipulated to an extension of the 

deadline for the District and Trustees to file any pleading responsive to the FAC. In 

addition, the FTR Parties were given until the deadline to file a second amended 

complaint. On the same day the stipulation was signed, and without notice to the FTR 

Parties, the District and Trustees filed the first anti-SLAPP motion seeking an order 

striking the FAC. The trial court found that this action raised the inference that the sole 

purpose of the motion was to harass. Given that the motion had partial merit, any such 

inference is negated.
44

Cal.App.4th 230, 244.) After reviewing the record, we conclude that this is not one of 

those rare cases where the trial judge should be disqualified.

All other issues raised by the parties are moot.

DISPOSITION

The orders denying the anti-SLAPP motions are reversed in part and affirmed in 

part. On remand, the trial court is instructed to grant the motions as to the personal 

capacity claim under section 1983 for the denial of procedural due process, the claim for 

intentional interference with contract and/or prospective economic advantage, and the 

claim for negligence. Under section 1983, the official capacity claims for denial of 

procedural due process and First Amendment retaliation as well as the personal capacity 

claim for First Amendment retaliation may proceed. So, too, can the taxpayer claim 

under Code of Civil Procedure section 526a. The award of attorney fees in connection 

with the first anti-SLAPP motion is reversed. 

The parties shall bear their own costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, Acting P. J.

ASHMANN-GERST

We concur:

_____________________________, J.

CHAVEZ

____________________________, J.

HOFFSTADT