Case Name: Promise Public Schools, Inc. v. San Jose Unified School District
Case No.: 18-CV-325491

Currently before the Court are the following matters: (1) the motion by respondent and defendant San Jose Unified School District (“District”) to stay this action; and (2) the special motion by District to strike the first amended petition and complaint (the “FAPC”) of petitioner and plaintiff Promise Public Schools, Inc. (“Promise”).

Factual and Procedural Background

This is a petition for writ of mandate and complaint for declaratory and injunctive relief. Promise filed its original petition and complaint against District on March 26, 2018. Thereafter, Promise filed the operative FAPC against District on April 19, 2018.

According to the allegations of the FAPC, Promise submitted a petition in 2017 to establish a charter school serving downtown San Jose’s student populations. (FAPC, ¶ 18.) District denied the charter petition and Promise appealed the denial to the State Board of Education (the “SBE”). (Ibid.)

While its appeal of the denial of its charter petition was pending before the SBE, Promise sent a written request to District pursuant to Proposition 39 asking District to “make available reasonably equivalent school facilities for Promise’s incoming students in Transitional Kindergarten, Kindergarten, and First, Second, Fifth and Sixth grades for the 2018-2019 school year.” (FAPC, ¶ 19.) Promise’s request included a projection of average daily classroom attendance (“ADA”) for in-District students for the 2018-2019 school year. (Id. at ¶ 20.) Specifically, Promise projected an in-District ADA of 193.64 units representing an enrollment of 210 students. (Ibid.) To support its projection, Promise provided District with Intent to Enroll forms signed by 318 parents, indicating meaningful interest in having their children attend Promise in the 2018-2019 school year. (Ibid.) Promise collected 184 forms before it submitted its charter petition and 134 forms thereafter. (Ibid.)

About one month later, District sent Promise a letter “declaring that it was tossing out all but 73 of the 318 Intent to Enroll forms” submitted with Promise’s request for reasonably equivalent school facilities. (FAPC, ¶ 21, emphasis omitted.) Specifically, District stated that after removing duplicate, incomplete, incorrect grade, and non-District address submissions, 216 submissions remained. (Id. at Ex. B.) District indicated that only “150 submissions remained after removing the submissions of parents that previously verified that they are not meaningfully interested in Promise ….” (Ibid.) District further stated that projecting “[t]he previous verification … rate of 55% not meaningfully interested in Promise” onto the “134 new submissions results in a reasonable projection of 61, plus the 16 previously verified responses, for a total of 77 reasonably projected verified responses.” (Ibid.) District then used the “stated average daily attendance rate of 94%” to conclude that a reasonable projection of ADA was 73 units for the 2018-2019 school year. (Ibid.) Lastly, District stated, “[w]hile 73 is … [itas] reasonable projection at this time, … District will, per the parent/guardian agreement on the Promise … Intent to Enroll form, adjust that projection accordingly based on the actual verification of the 134 new submissions.” (Ibid.) Promise alleges that any such verification would have necessarily been after the December 1, 2017 deadline for District to make objections to its facilities request. (Id. at ¶ 22.)

In early 2018, the SBE approved Promise’s charter petition and scheduled the school to open in the 2018-2019 school year. (FAPC, ¶ 18.)

In addition, District sent Promise another letter, indicating that it had attempted to verify the 134 new Intent to Enroll forms. (FAPC, ¶¶ 24-25 and Ex. D.) District stated that “[t]he results of the entire process” were that “36 in-[D]istrict students did verify as meaningfully interested in attending Promise … for the 2018-2019 school year, 72 in-district students did not verify as meaningfully interested in attending Promise … for the 2018-2019 school year, and … District was unable to receive verification from 42 in-[D]istrict students.” (Id. at Ex. D.) District concluded that Promise had not provided evidence of at least 80 units of ADA and its request for facilities was, therefore, denied. (Ibid.)

Subsequently, District offered to lease school facilities to Promise, but District gave no indication that it intended to provide Promise with school facilities pursuant to Proposition 39. (FAPC, ¶¶ 26-28.)

Based on the foregoing allegations, Promise seeks a writ of mandate pursuant to Code of Civil Procedure section 1085 compelling “District to comply with its ministerial obligation under Prop. 39 and its Implementing Regulations to immediately make an offer of reasonably equivalent, contiguous and furnished and equipped facilities in the Downtown San Jose area, pursuant to Prop. 39 … based on Promise’s projected in-District ADA of 193.64 for the 2018-2019 school year, and immediately cease and desist from taking any action that is inconsistent with allocating said facilities to Promise based on an in-District ADA of 193.64.” (FAPC, ¶ 39 and Prayer for Relief, ¶ 1.)

Promise also seeks a declaration under Code of Civil Procedure section 1060 stating that: “the supporting documentation submitted by Promise with its Request for Proposition 39 Facilities is sufficient in and of itself to, and does, demonstrate that Promise’s in-District ADA projection of 193.64 is reasonable, and … District may not use information gathered from any ‘counter-surveys’ to discount that projection”; “District’s reduction of Promise’s in-district ADA projection based on information gathered through its telephonic counter-surveys [is] legally impermissible”; “any efforts by … District to verify whether Promise’s in-district ADA projections are reasonable must be limited to review of the Intent to Enroll documentation submitted to determine if the student is a District resident and grade-eligible”; “using information gathered from telephonic surveys of signatories of Intent to Enroll forms for purposes of rebutting Promise’s in-District ADA projections is unlawful”; and District must immediately “make [a] preliminary offer of reasonably equivalent, contiguous and furnished and equipped facilities in the Downtown San Jose area, pursuant to Prop. 39, on Promise’s projected in-District ADA of 193.64.” (FAPC, ¶ 43 and Prayer for Relief, ¶ 2.)

Finally, Promise seeks an order (1) “enjoining … District from making a preliminary offer of Prop. 39 facilities and/or a final offer of Prop. 39 facilities to Promise … that is not one of reasonably equivalent, contiguous, furnished and equipped facilities in the Downtown San Jose area … based on Promise’s projected in-District ADA of 193.64” and (2) “requiring District to base its offer of facilities to Promise for the School’s 2018-2019 school year on an in-District ADA projection of 193.64.” (FAPC, Prayer for Relief, ¶ 3.)

On April 30, 2018, District filed the instant motion to stay and special motion to strike. Promise filed papers in opposition to both matters on May 9, 2018. On May 15, 2018, District filed replies in support of its motions.

The hearing on Promise’s FAPC is currently set for June 4, 2018.

Discussion

I. Motion to Stay Action

District moves to stay this action pending the resolution of its petition for writ of mandate challenging the SBE’s approval of Promise’s charter (California School Boards Association, et al. v. State Board of Education, et al., Sacramento Superior Court, Case No. 34-2018-80002834) (the “SBE Matter”). (Ntc. Mtn., p. 1:22-26; Mem. Ps. & As., p. 1:7-14.)

A. Request for Judicial Notice

In connection with its opposition, Promise asks the Court to take judicial notice of: excerpts from District’s 2016-2017 LCAP and Budget Executive Summary on Enrollment (“Budget Summary”); the California Department of Education’s Dashboard Student Group Report for District for the fall of 2017 (“Dashboard Report”); a printout from a government website showing the California Assessment of Student Performance and Progress Test Results for English Language Arts/Literacy and Mathematics Test Result Comparison for District (“District’s Test Result Comparison”); and three written trial court rulings from California superior courts.

As an initial matter, the trial court rulings are not proper subjects of judicial notice as they have no precedential value. (See Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 830–31 [declining to consider a written trial court ruling]; see also San Diego County Employees Retirement Ass’n v. County of San Diego (2007) 151 Cal.App.4th 1163, 1184 [“Retirement Association’s reliance on a 1998 superior court judgment is unhelpful. [Citation.] A trial court judgment cannot properly be cited in support of a legal argument, absent exceptions not applicable here.”]; Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 884–85 [declining to take judicial notice of a written trial court ruling]; Crab Addison, Inc. v. Super. Ct. (2008) 169 Cal.App.4th 958, 963 [same].)

Next, the printout from a government website showing District’s Test Result Comparison is not a proper subject of judicial notice. Promise fails to explain why the website site printout and its contents constitute an official act of a government agency. (See Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaeffer) [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”]; see also Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 902 (Licudine) [affirming trial court decision not to take judicial notice of median salary listed on U.S. Bureau of Labor Statistics Website because it was not an official act].) Furthermore, documents that are website printouts are generally not proper subjects of judicial notice. Although it might be appropriate to take judicial notice of the existence of the websites themselves, the same is not true of their factual content especially where the party requesting judicial notice does not establish that the content is not reasonably subject to dispute. (See Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519 [refusing to take judicial notice of website pages of the American Coal Foundation and the U.S. Dept. of Energy]; see also Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737 [refusing to take judicial notice of information on the Cal. Bd. of Registered Nursing website]; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 760–61 [judicial notice of the contents of webpages is permitted only if the information is not reasonably subject to dispute].)

Lastly, Promise fails to demonstrate that the Budget Summary and Dashboard Report are proper subjects of judicial notice. Promise neither explains why the documents and their contents constitute official acts of a government agency nor shows that the facts set forth therein are not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”]; see also Licudine, supra, 3 Cal.App.5th at p. 902 [affirming trial court decision not to take judicial notice of median salary listed on U.S. Bureau of Labor Statistics Website because it was not an official act].)

Accordingly, Promise’s request for judicial notice is DENIED.

B. Legal Standard

“It is well established, in California and elsewhere, that a court has both the inherent authority and responsibility to fairly and efficiently administer all of the judicial proceedings that are pending before it, and that one important element of a court’s inherent judicial authority in this regard is ‘the power … to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.’ ” (People v. Engram (2010) 50 Cal.4th 1131, 1146, quoting Landis v. North American Co. (1936) 299 U.S. 248, 254-55.) Following this principle, “[t]rial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.)

C. Analysis

District argues that the Court should stay this action until the resolution of the SBE Matter because: (1) the SBE Matter challenges the SBE’s approval of Promise’s charter and Promise’s “demand for facilities will be moot in the event that the Sacramento Superior Court rescinds approval of the charter”; and (2) it would be “extremely burdensome” if it had to “incur the time and expense of identifying and preparing a facility” to accommodate Promise’s students. (Mem. Ps. & As., pp. 1:12-15, 3:15-4:5.)

As a preliminary matter, District cites no legal authority suggesting that this action should be stayed because the trial court’s ruling in the SBE Matter may render this case moot. (See Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Additionally, as Promise points out, District’s argument is wholly speculative; District makes no attempt to demonstrate that there is a likelihood it will prevail on its writ petition. Moreover, abatement of an action on the ground that another action is pending in the same jurisdiction requires a showing that both suits are predicated upon the same cause of action and both suits are contested by the same parties. (Pitts v. City of Sacramento (2006) 138 Cal App 4th 853, 856; Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 176.) District neglects to articulate how or why the elements required to abate an action are satisfied here. Furthermore, it is readily apparent that such elements cannot be met here because this case and the SBE Matter are predicated on different claims and contested by different parties. (See generally, FAPC; see also McMahon, Ex. F.)

Next, District’s second argument regarding undue burden is not well-taken. The declaration by District’s counsel is the only evidence presented in support of District’s argument. District’s counsel declares that “[i]t would be extremely burdensome for [District] to have to prepare school facilities for occupation in the two months between adjudication of this matter, and August 2018, the beginning of the 2018-2019 school year.” (McMahon Dec., ¶ 8.) Counsel states that “[t]he steps required for [District] to have facilities ready for [Promise’s] occupation by August 2018 would include”: “[i]dentification of a reasonably equivalent site with available classrooms, specialized teaching space, and non-teaching space”; “[o]utreach with the community … that might oppose the location of [Promise] at the site”; “[p]repare classrooms and other spaces for use by [Promise]”; and, “[i]f necessary, obtain approval from the Division of the State Architect for any improvements made to the site in anticipation of [Promise’s] use and occupation of the site.” (Ibid.)

Counsel’s conclusory assertions regarding District’s potential burden are insufficient to support the request for a stay of this action. First, while counsel generally sets forth steps that the District must purportedly take if Promise’s action succeeds, counsel does not articulate any facts showing the quantum or work required or the expense that District would incur as a result of implementing the various steps. Thus, District’s evidence does not substantiate its claim of burden. Second, it is unclear whether each of the steps listed by District’s counsel are truly necessary. District does not provide any reasoned argument or legal authority indicating that District must conduct “[o]utreach with the community” or “obtain approval from the Division of the State Architect for any improvements made to the site in anticipation of [Promise’s] use and occupation of the site.” (See Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Moreover, as District considered leasing Promise school facilities for its use (see McMahon Dec., Exs. C and E), District presumably made some preliminary determinations regarding facilities that may meet Promise’s needs.

Additionally, District makes no attempt to demonstrate that its burden outweighs Promise’s competing interest in having its case heard on June 4, 2018. As Promise persuasively argues, it is likely that Promise will suffer harm if the Court stays this case pending resolution of the SBE Matter. The SBE Matter is set for hearing on June 29, 2018, well-after the hearing set in this case. It is very possible that a final order will not issue in the SBE Matter until the 2018-2019 school year has already begun. Thus, Promise would be harmed as it would be unable to open its school for the 2018-2019 school year.

Finally, in its reply papers, District asserts that Promise did not pursue this action in a timely manner because Promise “waited until five days before the April 1, 2018 final offer deadline to seek relief from the Court.” (Reply, p. 3:26-27.) District assumes that a final judgment will not issue in this case with sufficient time for a facility to be prepared for Promise’s use. These arguments are not well-taken. First, District cites no legal authority whatsoever supporting its contention that a stay is warranted simply because Promise filed this action five days prior to District’s April 1, 2018 deadline to make a final offer of facilities. (See Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Second, District does not present any evidence establishing that facilities cannot be prepared for Promise’s use in time for the start of the 2018-2019 school year.

D. Conclusion

As each of District’s arguments lacks merit, the motion to stay this action is DENIED.

II. Special Motion to Strike

Under Code of Civil Procedure section 425.16, District moves to strike the FAPC on the grounds that Promise’s petition for writ of mandate and declaratory relief claim arise from protected activity and Promise cannot establish a probability of prevailing on its claims.

A. Request for Judicial Notice

In connection with its opposition, Promise asks the Court to take judicial notice of excerpts from the minutes of the District’s board meeting of May 4, 2014.

The excerpts from the minutes of the District’s governing board meeting are proper subjects of judicial notice. (See Evans v. City of Berkeley (2006) 38 Cal.4th 1, 9, fn. 5 [judicial notice taken of minutes of city council meeting]; see also Silverado Modjeska Recreation and Parks Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 309, fn. 20 [judicial notice may generally be taken of minutes of recreation and parks district meeting]; Ochoa v. Anaheim City School District (2017) 11 Cal.App.5th 209, 221 [judicial notice taken of SBE minutes].)

Accordingly, Promise’s request for judicial notice is GRANTED, but only as to the existence and contents of the minutes, not as to the truth of any hearsay statements therein.

B. Evidentiary Objections

Promise filed several objections to evidence offered by District in support of its special motion to strike. Because these objections are not material to the disposition of the motion, the Court declines to rule on the same.

C. Legal Standard

“Section 425.16 provides … that ‘A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.’ [Citation.] ‘As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:’ ” (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Navellier v. Sletten (2002) 29 Cal.4th 82, 87–88 (Navellier); Code Civ. Proc., § 425.16. subd. (e).)

The statute “posits … a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation].” (Navellier, supra, 29 Cal.4th at p. 88.) In deciding whether the arising from requirement is met, courts “assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct…that provides the foundation for the claim.’ ” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-72, citation omitted.) “If the core injury-producing conduct upon which the plaintiff’s claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute.” (Ibid.) As the California Supreme Court has stressed, “the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 (Peregrine Funding) [“In other words, the defendant’s act underlying the plaintiff’s cause of action must itself have been in furtherance of the right of petition or free speech.”].) When making this determination, courts consider “ ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Peregrine Funding, supra, 133 Cal.App.4th at p. 670.) “[I]f the defendant does not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step.” (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 271.)

“If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]” (Navellier, supra, 29 Cal.4th at p. 88.) “ ‘ “To satisfy this prong, the plaintiff must ‘state [ ] and substantiate [ ] a legally sufficient claim.’ [Citation.] ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” ’ [Citation.]” (Freeman v. Schack (2007) 154 Cal.App.4th 719, 726–27.)

D. District’s Initial Burden

District argues that the FAPC arises from its “officials’ exercise of rights protected by Code of Civil Procedure section 425.16(e)(1), (2) and (4) ….” (Ntc. Mtn., p. 2:2-4.) District contends that the FAPC “seeks to prohibit [it] from communicating with its constituency” and “[t]he gravamen and principal thrust of all causes of action is its challenge to oral and written statements, and verification efforts,” made by District staff in connection with Districts “official proceeding to review and respond to [Promise’s] facilities request.” (Mem. Ps. & As., p. 1:1-18.) District states that the FAPC “exclusively centers around the allegation that [District] should be prohibited from contacting parents/guardians and verifying whether they were meaningfully interested in enrolling their child in [Promise].” (Id. at p. 7:9-11.) In support of its position, District relies primarily on Vergos v. McNeal (2007) 146 Cal.App.4th 1387 (Vergos) and Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257 (Tuszynska) for the proposition that the hearing, processing, and deciding of issues during official proceedings constitutes protected activity.

Upon review of the allegations of the FAPC, the Court finds that District’s argument is not well-taken. The California Supreme Court case of Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 (Park) is particularly instructive here.

In Park, the California Supreme Court reiterated that “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060, emphasis in original.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim. Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ ” (Id. at 1062-63, internal citations omitted.) A careful distinction must be made “between a cause of action based squarely on a privileged communication, such as an action for defamation, and one based upon an underlying course of conduct evidenced by the communication.” (Id. at p. 1064.)

The Supreme Court highlighted the case of San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343 (San Ramon) where a fire protection district sued a county retirement board over the pension contribution levels the board decided to impose. In San Ramon:

The board filed an anti-SLAPP motion, arguing the suit arose out of the deliberations and vote that produced its decision. The Court of Appeal disagreed. It explained that “ ‘[t]he [anti-SLAPP] statute’s definitional focus is … [whether] the defendant’s activity giving rise to his or her asserted liability … constitutes protected speech or petitioning.’ ” [Citation.] It distinguished between the board’s allegedly wrongful act (the contribution level decision) and the preceding deliberations and vote. “[T]he fact that a complaint alleges that a public entity’s action was taken as a result of a majority vote of its constituent members does not mean that the litigation challenging that action arose from protected activity, where the measure itself is not an exercise of free speech or petition. Acts of governance mandated by law, without more, are not exercises of free speech or petition.” [Citations.]

(Park, supra, 2 Cal.5th at p. 1064.)

The court also discussed Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207 (Graffiti) as an example of the distinction between speech that provides the basis for liability and speech that provides evidence of liability. In Graffiti:

[A] company sued a city after its government contract was terminated and a new contract awarded without competitive bidding to a rival. The trial court granted the city’s anti-SLAPP motion. Reversing, the Court of Appeal explained, “In deciding whether an action is a SLAPP, the trial court should distinguish between (1) speech or petitioning activity that is mere evidence related to liability and (2) liability that is based on speech or petitioning activity. Prelitigation communications or prior litigation may provide evidentiary support for the complaint without being a basis of liability. An anti-SLAPP motion should be granted if liability is based on speech or petitioning activity itself.” [Citation.] While communications by the city preceding its decision might be helpful in establishing what events led to the change in contract, the contractor’s claims were not based on them, but on the award of a new contract in alleged violation of laws regulating competitive bidding. [Citation.]

(Park, supra, 2 Cal.5th at p. 1065.)

The California Supreme Court in Park understood that “to read the ‘arising from’ requirement differently, as applying to speech leading to an action or evidencing an illicit motive, would, for a range of publicly beneficial claims, have significant impacts the Legislature likely never intended. Government decisions are frequently ‘arrived at after discussion and a vote at a public meeting.’ [Citation.] Failing to distinguish between the challenged decisions and the speech that leads to them or thereafter expresses them ‘would chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power.’ [Citations.]” (Park, supra, 2 Cal.5th at p. 1067.)

In addition, the Park court distinguished the two cases that District primarily relies upon—Vergos and Tuszynska.

The court pointed out that Vergos does not support an argument that all aspects of a government process, including the ultimate decision, are inextricably intertwined protected activity. (Park, supra, 2 Cal.5th at p. 1070.) “In Vergos, only the individual officer filed an anti-SLAPP motion, and the court was not called on to decide whether any of the claims against the employer defendant arose from protected activity. … [D]enying protection to the hearing officer’s participation in the process might chill employees’ willingness to serve and hamper the ability to afford harassed employees review of their complaints. [Citation.] Likewise, to deny protection to individuals weighing in on a public entity’s decision might chill participation from a range of voices desirous of offering input on a matter of public importance. But no similar concerns attach to denying protection for the ultimate decision itself, and none of the core purposes the Legislature sought to promote when enacting the anti-SLAPP statute are furthered by ignoring the distinction between a government entity’s decisions and the individual speech or petitioning that may contribute to them.” (Id. at pp. 1070-71 and fn. 4.)

Similarly, the Supreme Court disapproved Tuszynska to the extent it “presupposes courts deciding anti-SLAPP motions cannot separate an entity’s decisions from the communications that give rise to them ….” (Id. at p. 1071.)

As Promise persuasively argues, the core injury producing conduct here is District’s refusal to provide Promise with reasonably equivalent school facilities pursuant to Proposition 39. (See FAPC, ¶¶ 18-25, 28, 31-39, 41-43 and Prayer for Relief, ¶¶ 1-3.) The injury producing conduct is not oral or written statements made to parents of potential Promise students during District’s verification process or oral or written statements to Promise regarding the denial of its facilities request. These various statements are simply evidence of District’s alleged wrongful conduct—its refusal to provide Promise with reasonably equivalent school facilities under Proposition 39 based on a flawed methodology whereby District disregards those Intent to Enroll forms for which District independently determines there is no meaningful intent to enroll. Thus, Promise’s claims do not arise from protected activity. (See Olive Properties v. Coolwaters Enterprises, Inc. (2015) 241 Cal.App.4th 1169, 1175 [“The ‘principal thrust or gravamen’ of [a plaintiff’s] claim determines whether section 425.16 applies. [Citations.] The ‘ “meaning of ‘gravamen’ is clear; ‘gravamen’ means the ‘material part of a grievance, charge, etc.’ [Citation.]” [Citation.] [¶] In the context of the anti-SLAPP statute, the “gravamen is defined by the acts on which liability is based….” [Citation.] The “focus is on the principal thrust or gravamen of the causes of action, i.e., the allegedly wrongful and injury-producing conduct that provides the foundation for the claims. [Citations.]” [Citation.]’ [Citation.]”].)

Because District fails to meet its initial burden to establish that the claims arise from protected activity, the special motion to strike is DENIED.

E. Request for Attorney Fees and Costs

1. District’s Request

In its notice of motion, District makes a conclusory request for an award of attorney fees and costs under Code of Civil Procedure section 425.16, subdivision (c). A defendant that prevails on an anti-SLAPP motion is entitled to recover attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c); see also Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 493.) Here, District did not prevail on its special motion to strike. Therefore, it is not entitled to an award of attorney fees and costs.

Accordingly, District’s request for attorney fees and costs is DENIED.

2. Promise’s Request

In its opposition, Promise requests an award of attorney fees under Code of Civil Procedure section 425.16, subdivision (c). Promise does not specify the amount of attorney fees it seeks to recover.

As a general matter, if a court finds that a special motion to strike is “frivolous or is solely intended to cause unnecessary delay,” it is required to award costs and reasonable attorney fees “pursuant to [Code of Civil Procedure] Section 128.5” to a “plaintiff prevailing on the motion.” (Code Civ. Proc., § 425.16, subd. (c); see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Code of Civil Procedure section 128.5 defines “frivolous” to mean “totally and completely without merit” or “for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subd. (b)(2.) The determination that an anti-SLAPP motion is “totally and completely without merit” requires a finding that “any reasonable attorney would agree such motion is totally devoid of merit.” (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.) The court has discretion in determining whether an anti-SLAPP motion was “frivolous,” but if it is so determined, an award of attorney fees is mandatory. (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388.)

Here, there is nothing to suggest that the instant motion is frivolous or was filed by District solely to cause unnecessary delay. Many attorneys, and courts, have struggled to correctly discern the difference between claims based squarely on a privileged communication and claims based upon an underlying course of conduct evidenced by the communication. There is no basis upon which to impose sanctions against District for filing the instant motion.

Accordingly, Promise’s request for attorney fees is DENIED.