Case Name: Dihua Zeng, et al. v. David Delgado, et al.
Case No.: 18-CV-323408

Currently before the Court is the special motion by defendants David Delgado (“Delgado”) and Cambrian Academy, Inc. (“Cambrian”) (collectively, “Defendants”) to strike the third cause of action for defamation from the first amended complaint (“FAC”) of plaintiffs Dihua Zeng (“Zeng”), Huijuan Li (“Li”), Hui Zeng aka Vivian Zeng (“Vivian”), Yang Gao (“Gao”), and Xiaojie Yu (“Yu”) (collectively, “Plaintiffs”).

Factual and Procedural Background

This is an action for defamation. Zeng and Li are the parents of Vivian. (FAC, ¶¶ 1-3.) Gao and Yu are the parents of Xiangyu Gao aka Simon Gao (“Simon”). (Id., at ¶¶ 4-6.)

In 2017, Vivian and Simon attended Cambrian, a private school in Santa Clara County. (FAC, ¶¶ 7-8 and 10-13.) Vivian and Simon were allegedly top students at Cambrian and were expected to graduate on June 6, 2018. (Id., at ¶ 15.) Delgado is the chief executive officer and headmaster of Cambrian. (Id., at ¶¶ 7-8.) He controls disciplinary decisions and the daily operations of Cambrian. (Id., at ¶ 9.)

On February 2, 2018, Vivian and Simon were reprimanded by Delgado for engaging in public displays of affection in violation of school policies set forth in the Cambrian Parent Student Handbook. (FAC, ¶¶ 17-20.) After Vivian’s homestay host inquired what the consequences would be if the behavior occurred again, Delgado emailed them a Final Written Warning. (Id., at ¶ 23.) He also indicated that Vivian and Simon were suspended from school, their families could not afford to compensate the school for the damage caused by Vivian and Simon’s behavior, and a final disciplinary decision would be made the following week. (Ibid.)

The parties scheduled a meeting regarding the final disciplinary decision for Vivian for February 8, 2018, and a meeting regarding the final disciplinary decision for Simon for February 9, 2018. (FAC, ¶ 25.) Vivian’s parents were concerned and asked a family friend, Ying Song, and a criminal defense attorney, Jessica Beeler (“Beeler”), to attend the meeting with Vivian. (Id., at ¶¶ 27-29.) At the February 8, 2018 meeting, Beeler introduced herself to Delgado, asked when the suspension would be lifted, and “requested details of Cambrian’s demand” for money to compensate Defendants for the purported damages caused by Vivian and Simon’s conduct. (Id., at ¶ 30.) At that time, Delgado did not explain the reasons for the suspension or make his final disciplinary decision. (Ibid.)
“Following what Vivian and [Beeler] viewed as an intimidating meeting with Delgado,” Simon’s parents “felt compelled to have [Beeler] accompany Simon for his meeting as well ….” (FAC, ¶ 33.) On February 9, 2018, “when Delgado saw Simon was accompanied by [Beeler], he immediately cancelled the meeting, accused them of trespassing and made them … leave Cambrian ….” (Id., at ¶ 34.) “Delgado later advised Vivian, Simon, and their parents that he would send out his disciplinary decision after he was advised by his attorney” on February 12, 2018. (Id., at ¶ 35.)

On February 12, 2018, “Beeler received a fax from Delgado (‘Expulsion Notice’) declaring that Vivian and Simon were expelled from Cambrian.” (FAC, ¶ 38.) The Expulsion Notice was also sent to Zeng, Li, Gao, Yu, and Cambridge Network. (Ibid.) In the Expulsion Notice, Delgado allegedly defamed Vivian and Simon “by making false statements about their in-school behavior as ‘multiple egregious violations’ at Cambrian [and] fabricating claims that they were ‘bullying and manipulating other students.’ ” (Id., at ¶ 39.) Delgado allegedly published the Expulsion Notice and “other defaming statements about Vivian and Simon to others, in writing, or orally, including, but not limited to, online posting in Vivian and Simon’s college application portal CommonApp.Org, Cambrian faculty, homestay hosts, Cambrian’s business partners which previously placed Vivian and Simon at Cambrian as international students, and other schools.” (Id., at ¶ 40.) Delgado deliberately jeopardized Vivian and Simon’s high school graduation and college enrollments “based on false claims[ ] after he realized that he could not successfully extort funds from their families.” (Id., at ¶ 41.)

Based on the foregoing, Plaintiffs filed the operative FAC against Defendants, alleging claims for: (1) intentional infliction of emotional distress; (2) negligent infliction of emotional distress; (3) defamation; and (4) unjust enrichment.

On March 19, 2018, Defendants filed the instant special motion to strike. Plaintiffs filed papers in opposition to the motion on March 29, 2018.

Discussion

Pursuant to Code of Civil Procedure section 425.16, Defendants move to strike the third cause of action for defamation from the FAC on the grounds that the claim arises out of protected activity and Plaintiffs cannot demonstrate a probability of prevailing on their claim.

I. The Anti-SLAPP Statute

“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]. 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.) “The second prong … is considered under a standard similar to that employed in determining nonsuit, directed verdict or summary judgment motions. … The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. [Citation.] In reviewing the plaintiff’s evidence, the court does not weigh it; rather, it simply determines whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial. [Citation.]” (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017.)

II. Third Cause of Action

In the third cause of action for defamation, Plaintiffs allege that “Delgado, individually and on behalf of Cambrian, made one or more statements set forth in [the] Expulsion Notice to a person or persons other than Vivian and Simon[ ].” (FAC, ¶ 58.) They further allege that “[t]he recipients of the statements reasonably understood that [the] statements in the Expulsion Notice referred to Vivian and Simon,” and the recipients “reasonably understood the statements to mean that Vivian and Simon were expelled from Cambrian based on their ‘multiple egregious violations’ or otherwise engaged in conduct that Vivian and Simon were not actually engaged [in].” (Id., at ¶¶ 59-60.) The statements were allegedly false and Defendants knew that the statements were false, or had serious doubts about the truth of the statements, at the time they were made. (Id., at ¶¶ 61-62.) Finally, Vivian and Simon’s high school careers and reputations were allegedly harmed as a result of the statements. (Id., at ¶ 63.)

A. First Prong

With respect to the first prong of the anti-SLAPP analysis, Defendants argue that the third cause of action arises out of protected activity because the claim is based on the Expulsion Notice addressed to Beeler; Beeler was Plaintiffs’ former attorney; the Expulsion Notice was “written in response to a communication from the attorney for Plaintiffs in which she was threatening litigation if the students were expelled”; and the Expulsion Notice “was sent in anticipation of court action ….” (Ds’ Mem. Ps. & A.s, pp. 1:25-28, 2:7-10, 3:17-4:1.)

In support of their argument, Defendants offer the declaration of Delgado. Delgado declares that Vivian and Simon were initial reprimanded for engaging in public displays of affection at Cambrian as the conduct violated the school’s Parent & Student Handbook. (Delgado Dec., ¶¶ 3 and 5-6.) Subsequently, Delgado, and the parent of prospective students, observed Vivian and Simon engaged in public displays of affection by the school’s dumpsters. (Id., at ¶ 7.) Delgado issued another warning to Vivian and Simon and, later, suspended them. (Id., at ¶ 8.)

Thereafter, Delgado met with Vivian, a family friend, and Beeler on February 8, 2018. (Delgado Dec., ¶ 9.) Beeler told him that she was representing Vivian and that all further communications should be made through her. (Ibid.) Before the meeting started, Delgado observed Beeler in the parking lot looking at the area where the incident had occurred and taking pictures. (Ibid.) Beeler told him that she saw the school’s security cameras and asked if any photographs were taken as they might show the incident. (Ibid.) During the course of the meeting, “Beeler kept saying that she was trying to help [Delgado] avoid a lawsuit.” (Ibid.) Delgado told Beeler that “[he] expected her to be the attorney for the students and he would rely upon the advice of his own attorney.” (Ibid.) Delgado further declares that Beeler attended the meeting with Simon on February 9, 2018. (Id., at ¶ 12.) Beeler “said that litigation is very expensive[ ] and that she was trying to help [him] avoid litigation.” (Ibid.)

Thereafter, Delgado reviewed the school’s video footage and determined that Vivian and Simon could no longer remain at Cambrian given their behavior. (Delgado Dec., ¶¶ 12-14.) Delgado declares that the video showed Vivian and Simon engaging in numerous displays of public affection, particularly in front of younger students and “it was obvious that there were doing this with the intent of causing distress to the younger students in close proximity.” (Id., at ¶ 12.) He “drafted a letter to send to [Beeler] which was sent to her and the parents/guardians of the two students, the ‘Cambridge Network’ who acted as the agent to enroll Vivian at Cambrian … and no other individuals, expelling Vivian and [Simon].” (Id., at ¶ 14.) Delgado declares that “[w]hen [he] wrote this letter and sent it to [Beeler], as well as the parents of [Vivian and Simon], [he] realized there was a substantial probability that a lawsuit would be filed by these students, through their parents, and that it was important that [he] send a letter that accurately set forth the school’s reasons for expelling these students in anticipation that a lawsuit would follow.” (Ibid.) Delgado states that “[i]t was clear to [him] from the statements made by [Beeler] that [he] could avoid a lawsuit by letting [Vivian and Simon] remain at the school,” but he “felt that [he] could not allow the threat of litigation to sway [his] decision ….” (Ibid.) Lastly, Delgado declares that Defendants are required to enter the reason for the students’ dismissal “in the SEVIS database” and that record was transferred “out to the new school.” (Id., at ¶ 16.)

The Expulsion Notice itself is addressed to Beeler and refers to Vivian and Simon as her clients. (FAC, Ex. E.) The Expulsion Notice also provides that Vivian and Simon were expelled from Cambrian after Delgado watched the school surveillance video and determined that there were “multiple egregious violations, some of which were intentionally calculated to manipulate and bully other students.” (Ibid.)

Based on the foregoing, Defendants contend that the Expulsion Notice constitutes a communication made in anticipation of litigation (i.e., the “letter was sent in contemplation of litigation knowing that if Cambrian … expelled either one or both of the Plaintiffs a lawsuit would, in all probability, be fi[l]ed”). (Ds’ Mem. Ps. & As., p. 3:25-26.)

Communications made in anticipation of litigation constitute protected activity for the purposes of the anti-SLAPP statute if the communication “concern[s] the subject of the dispute” and are made in anticipation of litigation “contemplated in good faith and under serious consideration.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268; Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789 (Bailey).) The “good faith” and “serious consideration” requirements exist because “[n]o public policy supports extending a privilege to persons who attempt to profit from hollow threats of litigation.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 (Action); Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 889 (Digerati) [“The requirement of good faith contemplation and serious consideration provides some assurance that the communication has some ‘ ‘ ‘connection or logical relation’ ’ ’ to a contemplated action and is made ‘ ‘to achieve the objects’ ’ of the litigation.”].)

Here, the allegations of purportedly protected activity identified by Defendants are the statements made in the Expulsion Notice itself. (Ds’ Mem. Ps. & A.s, pp. 1:25-28, 2:7-10, 3:17-4:1.) As currently pleaded, the third cause of action is based only upon statements made in the Expulsion Notice. (FAC, ¶¶ 58-62.) Moreover, Defendants meet their initial burden to show that the Expulsion Notice was a communication made in anticipation of litigation such that it constitutes protected activity. The Expulsion Notice concerns the subject of the dispute as the statements therein pertain to Vivian and Simon’s public displays of affection, the effect of their conduct on their fellow students, and their expulsion. (See FAC, Ex. E.) In addition, Delgado declares that the Expulsion Notice was sent in anticipation of litigation arising from his disciplinary decision regarding Vivian and Simon. (Delgado Dec., ¶ 14.) His declaration further establishes that Plaintiffs retained an attorney—Beeler—to represent them in connection with the disciplinary decision; Beeler took photographs of the incident location; and Beeler raised the threat of litigation during meetings with Defendants. (Id., at ¶¶ 9 and 12.) The Expulsion Notice itself is addressed to Beeler and refers to Vivian and Simon as her clients. (FAC, Ex. E.) Finally, Plaintiffs filed their lawsuit against Defendants one day after the Expulsion Notice was sent. This evidence shows that the anticipated litigation was contemplated in good faith and under serious consideration at the time Defendants made the statements in the Expulsion Notice. (See Digerati, supra, 194 Cal.App.4th at p. 888 [finding litigation was contemplated in good faith based on pre-litigation statements themselves, declarations by involved party and attorneys, and the fact that litigation was actually filed soon after the statements were made].)

In opposition, Plaintiffs do not dispute that Beeler was their counsel, Beeler raised the threat of litigation during meetings with Defendants, or litigation regarding Delgado’s final disciplinary decision was under good faith and serious contemplation at the time the subject statements were made. Instead, Plaintiffs argue that the Expulsion Notice was not a communication in anticipation of litigation because it was “Delgado’s further malicious and outrageous action, along with his fabrication of alleged bullying by Vivian and Simon so that he could use the expulsion as the triggering event to further sabotage Vivian and Simon’s (i) international student visa status, (ii) high school graduation, and (iii) university enrollment.” (Opp’n., p. 4:2-6) In particular, Plaintiffs contend that Defendants’ statement accusing Vivian and Simon of bullying other children “was clearly different and not within the scope of the anticipated litigation when Vivian and Simon were suspended for their alleged handholding ….” (Id., at pp. 4:6-9 and 5:1-19.)

This argument is not well-taken. Here, the subject of the dispute is the statements made by Defendants in the Expulsion Notice, i.e., that Vivian and Simon were expelled from Cambrian because of “multiple egregious violations, some of which were intentionally calculated to manipulate and bully other students.” (FAC, ¶¶ 58-62 and Ex. E.) Thus, the statements in the Expulsion Notice clearly concern the subject of this dispute. Moreover, Delgado’s declaration establishes that he made the subject statements in anticipation of litigation by Plaintiffs’ regarding his disciplinary decision. (Delgado Dec., ¶ 14.) His declaration and the Expulsion Notice itself are also sufficient to show that litigation regarding his disciplinary decision was contemplated in good faith and under serious consideration at the time the statements were made. (Id., at ¶¶ 9 and 12; FAC, Ex. E.)

Thus, the burden shifts to Plaintiffs to establish a probability of prevailing on the merits of their defamation claim.

B. Second Prong

With respect to the second prong of the anti-SLAPP analysis, Defendants argue that Plaintiffs cannot establish a probability of prevailing on the merits of their defamation claim because the statements in the Expulsion Notice are protected by the litigation privilege.

“Cases applying the litigation privilege have held that if the statement is made with a good faith belief in a legally viable claim and in serious contemplation of litigation, then the statement is sufficiently connected to litigation and will be protected by the litigation privilege.” (Bailey, supra, 197 Cal.App.4th at p. 790, citation and internal quotation marks omitted.) Courts view a pre-litigation communication as privileged under Civil Code section 47 if it “relates to litigation that is contemplated in good faith and under serious consideration.” (Action, supra, 41 Cal.4th at p. 1251; Rubin v. Green (1993) 4 Cal.4th 1187, 1193 [communications with some relation to judicial proceedings are absolutely immune from tort liability by the litigation privilege].) “The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. Put another way, application of the privilege does not depend on the publisher’s motives, morals, ethics or intent. Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having some relation to a judicial proceeding, and to all torts other than malicious prosecution.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913, internal citations and quotation marks omitted.) “Any doubt about whether the privilege applies is resolved in favor of applying it.” (Ibid.; Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1429–1431 [“Doubts about the privilege’s applicability are resolved in favor of its use.”].)

For the reasons previously stated, Defendants’ evidence establishes that the statements in the Expulsion Notice were made in anticipation of litigation by Plaintiffs regarding Delgado’s disciplinary decision and such litigation was contemplated in good faith and under serious consideration at the time the statements were made. Thus, the litigation privilege applies and Plaintiffs cannot demonstrate a probability of prevailing on their defamation claim.

C. Conclusion

Given the foregoing, Defendants’ special motion to strike the third cause of action is GRANTED.