Filed 2/6/20 Burke v. Newport Beach Aquatics, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

GRIFFIN BURKE,

Plaintiff and Appellant,

v.

NEWPORT BEACH AQUATICS, INC., et. al.,

Defendants and Respondents.

G057048

(Super. Ct. No. 30-2016-0882380)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Layne H. Melzer, Judge. Reversed and remanded.

Griffin Burke, in pro. per., for Plaintiff and Appellant.

Beach Cowdrey Jenkins, Thomas E. Beach, Darryl C. Hottinger and Eligio J. Luevanos for Defendants and Respondents.

* * *

This appeal turns on the issue of whether a communication conveying that a minor was terminated from a school-related club due to his inappropriate behavior toward another minor of the opposite sex is a “public issue” or an “issue of public interest” pursuant to subdivision (e) of Code of Civil Procedure section 425.16 (the anti-SLAPP law). We conclude it is not, as the alleged incident involved private individuals, and affected at most a small number of people. Moreover, even if we assumed the communication was intended to convey that the inappropriate behavior allegedly engaged in by the minor amounted to sexual harassment or assault—and that in the abstract, those are issues of public interest—we would nonetheless conclude that the revelation of such conduct by the representative of a school-related club to the principal of the high school itself would not be for the purpose of contributing to the “public debate” about these issues. To the contrary, public policy promotes and protects confidentiality in matters involving school discipline, rather than public discussion, especially when the student subjected to discipline is a minor.

In reaching that conclusion, we do not suggest that liability would, or should, attach to communications such as those alleged to have occurred in this case. That issue is not before us. We hold only that a communication between the representative of a school-related entity and a representative of the school itself, suggesting that a minor student engaged in misconduct involving another minor student of the opposite sex, does not qualify for protection under the anti-SLAPP law.

We consequently reverse the judgment entered against Griffin Burke after the court granted defendants Newport Beach Aquatics, Inc. (NBAI) and Dean Crow’s special motion to strike his complaint pursuant the anti-SLAPP law.

FACTS

Burke filed his complaint in March 2018, alleging causes of action for negligence and intentional tort, based on allegations that the defendants harassed him and made false accusations of misconduct against him in retaliation for his complaints relating to NBAI’s swimming program.

In July 2018, Burke filed his first amended complaint, alleging causes of action for sexual harassment of a minor against Newport Harbor High School and its swim coach, intentional infliction of emotional distress against the same two defendants, negligent supervision against the high school, and defamation per se and intentional infliction of emotional distress against defendants NBAI and Crow.

The causes of action alleged against NBAI and Crow are based on the allegations that Crow made a public statement falsely accusing Burke of “‘peer-to-peer sexual abuse’ (a crime),” which Crow knew to be false, and that NBAI authorized and ratified the false statement. The causes of action also incorporate the allegation that the principal of Newport Harbor High School had received an e mail stating that Burke was being removed from swim practice based on his “peer-to-peer sexual abuse” with another minor student at the high school.

On July 20, 2018, two weeks after Burke filed his first amended complaint, defendants Crow and NBAI appeared in the action by filing a notice of posting jury fees and a case management statement. In their case management statement, these defendants identified another case, also pending in the Orange County Superior Court, as a “companion, underlying, or related case[].” (Gregory Burke v. Basil, et al., Super. Ct. of Orange County No. 30-2016-00882380.) They represented that a motion to consolidate the two cases had been filed.

On September 4, 2018, the court ordered Burke’s case (No. 30-2018-00977345) consolidated with the other case, designating that older case as the lead case. A week later, Crow and NBAI moved to strike Burke’s amended complaint against them under the anti-SLAPP law.

In their motion to strike, NBAI and Crow identify Crow as a board member of NBAI, a swim club they describe as having a “business relationship” with Newport Harbor High School. They do not reveal the exact nature of that business relationship, but Crow states in his declaration that NBAI is “identified as a ‘school-connected organization.’ [Its] members can receive Newport Harbor High School credit (for physical education) upon meeting certain requirements. [Burke] was part of that school credit program and was receiving high school credits as part of his participation in Newport Beach Aquatics, Inc. swim club.” The swim club and the high school swim teams were all coached by Trevor Basil.

NBAI and Crow explain Burke “was dismissed from the swim club after the swim club received information that [he] had behaved inappropriately towards female swimmers.” They do not claim they conducted any investigation into the claimed inappropriate behavior after they received the information. Nor do they claim they complied with the requirements of NBAI’s own disciplinary process, which mandates notice to the swimmer and a hearing before “[the] Disciplinary Committee” prior to termination or suspension of a swimmer’s membership in the club.

According to NBAI and Crow, the underlying incident of “peer-to-peer sexual abuse” had been reported by the parent of a female swimmer in an e mail to Basil. In that e mail, the parent reported that Burke had approached the female swimmer from behind while she was seated in a chair talking to another male at a swim meet, and he “put[] his face uncomfortably close to hers.” The female swimmer asked Burke to back up; he did so only after she repeated the request several times. She got out of her chair and moved a short distance away to continue her conversation; Burke then “sat down in her lap.” She told him to get off, and tried to push him off, but he did not move until another male pushed him off. The next day, the female swimmer intended to report the incident to the swim coach (Basil), but while she was speaking to the coach about a different matter, Burke came up behind her and “shoved her out of the way.” Crow declared that he was informed by Basil that the female swimmer had reported to him in a text, that Burke “can’t keep his hands to himself,” although Crow did not claim he had seen the text himself. Neither the text, nor any direct evidence from Basil or the female swimmer, was produced.

NBAI and Crow asserted that based on those reports and NBAI’s ‘“zero tolerance”’ sexual harassment policy, NBAI’s board determined Burke’s membership in the swim club would be terminated to protect the safety of its other members and to protect the club against potential liability.

Following Burke’s dismissal, Crow “sent two emails/letters, one to [Burke’s father], and one to the principal of [Burke’s] high school,” whom Crow identified as “a mandated reporter of child abuse” pursuant to Penal Code section 11165.7 and “a person who was interested in preventing peer-to-peer sexual abuse.”

The e mail to the principal disclosed that Burke’s membership in the swim club had been terminated “based on his behaviors towards female club members that culminated at their swim meet on 11/1 & 2.” It did not specify the nature of those behaviors.

According to Crow, he “believed that [the principal] would have an interest in protecting the high school’s female swimmers from sexual harassment by [Burke], if any was determined to have occurred during school hours upon an appropriate investigation.”

In his opposition to the anti-SLAPP motion, Burke acknowledged that his defamation and intentional infliction of emotional distress claims were based at least in part on Crow and NBAI’s report of his alleged misconduct to the high school principal. He claimed the report was false and that Crow and NBAI knew it was false. Burke also offered evidence that his termination from the swim club had been done in violation of club regulations requiring notice and due process, and was in response to his own claim that he had been harassed by the team coach.

Burke contended that the timing of his membership termination, without any effort to abide by the club’s notice and due process regulations, supports the inference that the termination was not the result of any legitimate concern about his behavior toward female swimmers. He instead asserts it was intended to stymie an investigation into his own harassment allegations and the club’s fear that damaging information about Basil might be revealed.

The trial court granted the motion to strike, reasoning that Crow’s disclosures about Burke were protected by the anti-SLAPP law because “[s]tatements about individuals who are believed to have engaged in sexual harassment when made about such activity, have been held to be a matter of public interest, and thus protected speech.”

DISCUSSION

1. The Anti-SLAPP Law

The anti-SLAPP law provides a summary mechanism to test the merit of any claim arising out of a defendant’s protected speech or petitioning activities. It authorizes courts to strike any cause of action which falls within the statute’s purview, if the plaintiff cannot demonstrate a probability of prevailing on it.

“The anti-SLAPP law was enacted ‘to protect nonprofit corporations and common citizens “from large corporate entities and trade associations” in petitioning government.’ [Citation.] Attempting to protect against ‘lawsuits brought primarily to chill’ the exercise of speech and petition rights, the Legislature embedded context into the statutory preamble, ‘declar[ing] that it is in the public interest to encourage continued participation in matters of public significance.’” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 143 (FilmOn.com).)

“Because our ‘primary goal is to determine and give effect to the underlying purpose of’ the anti-SLAPP statute” we will “liberally extend the protection of the anti-SLAPP statute where doing so would ‘encourage continued participation in matters of public significance,’ but withhold that protection otherwise.” (FilmOn.com, supra, 7 Cal.5th at p. 154.)

When a party moves to strike a complaint on the basis of the anti-SLAPP law, the court engages in a two step process in determining whether a defendant’s motion to strike should be granted. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

Then, only if the court finds the defendant has made that required showing, the burden shifts to the plaintiff to demonstrate “there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1); DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568.)

We review an order made pursuant to the anti-SLAPP law on a de novo basis. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999 [“Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal”].) “While we are required to construe the statute broadly, we must also adhere to its express words and remain mindful of its purpose.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 864, fn. omitted.)

2. The Protected Activity Prong

The anti-SLAPP law applies only to “[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 in connection with a public issue . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).)

The statute defines an “‘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’” to include specific categories of speech and petitioning activities, including: (1) any statements or writings made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any statements or writings made in connection with an issue under consideration or review by any such body or official proceeding; (3) any oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. (Code Civ. Proc., § 425.16, subd. (e)(1-3).)

In what is sometimes referred to as a “catchall provision” (FilmOn.com, supra, 7 Cal.5th at p. 144; San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 101), the anti-SLAPP law also applies to “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” (Code Civ. Proc., § 425.16, subd. (e)(4)).

As explained in Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, that provision encompasses “even private communications, so long as they concern a public issue.” (Id. at p. 897.) “California cases establish that generally, ‘[a] public issue is implicated if the subject of the statement or activity underlying the claim (1) was a person or entity in the public eye; (2) could affect large numbers of people beyond the direct participants; or (3) involved a topic of widespread, public interest.’” (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226.)

In this case, Crow and NBAI contend their communication to the high school principal about Burke’s termination from the club qualifies for protection under the catchall provision because it involved “the prevention of sexual abuse and sexual harassment,” which is a topic of public interest. We disagree.

As our Supreme Court stated recently in FilmOn.com, supra, 7 Cal.5th at p. 140, the fact that “the topic discussed is, broadly speaking, one of public interest” does not necessarily qualify a communication for protection under the catchall provision of the anti-SLAPP law. Instead, courts must consider the context in which a particular statement is made and assess “the functional relationship between a statement and the issue of public interest on which it touches—deciding, in the process, whether it merits protection under a statute designed to ‘encourage continued participation in matters of public significance.’” (Ibid.)

In FilmOn.com, the communication at issue was the defendant’s confidential report, distributed only to its paid subscribers, that characterized the plaintiff’s websites as containing both “‘Copyright Infringement’ material” and “‘Adult Content,’ which it then defines, in a glossary included in the report, as ““[m]ature topics which are inappropriate viewing for children including explicit language, content, sounds and themes.’”’” (FilmOn.com, supra, 7 Cal.5th at p. 141.) The defendant argued its report was protected by the anti-SLAPP law because “‘the public ha[s] a demonstrable interest in knowing what content is available on the Internet, especially with respect to adult content and the illegal distribution of copyrighted materials.’” (Id. at p. 142.) Although both the trial and intermediate appellate courts agreed with that assertion, the Supreme Court did not.

The Supreme Court reasoned that rather than focusing solely on the “topic” of the communication, “[t]he inquiry under the catchall provision instead calls for a two part analysis rooted in the statute’s purpose and internal logic. First, we ask what “public issue or [ ] issue of public interest” the speech in question implicates—a question we answer by looking to the content of the speech. [Citation.] Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.” (FilmOn.com, supra, 7 Cal.5th at pp. 149-150.) The Court also noted, in assessing whether the statement qualifies for protection under the second part of the test, that “the catchall provision demands ‘some degree of closeness’ between the challenged statements and the asserted public interest.” (Id. at p. 150.) Thus, “even if adult content on the Internet and FilmOn’s particular streaming model are in fact issues of public interest, . . . ‘it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.’” (Ibid.)

Applying that two-part analysis, the Supreme Court concluded that, although the defendant’s confidential reports related to the issues of copyright infringement and adult content, they did not contribute to the “public debate” about those issues because they were not distributed to the public, and the recipients were contractually obligated to maintain their confidentiality. Hence, the reports were not intended to enter the public sphere. (FilmOn.com, supra, 7 Cal.5th at p. 153.)

In this case, based on NBAI and Crow’s description of the “business relationship” between the swim club and the high school, and the content of the e mail itself, we conclude the primary topic of the e mail was simply the disclosure of Burke’s termination from the swim club to the high school principal. Crow and NBAI knew that Burke was receiving physical education class credit from the high school for his participation in the swim club, and thus NBAI had a responsibility to notify the school that his participation in club activities had ceased. That communication, about a student’s eligibility for high school class credit, would not be a matter of public interest, nor would it add to any “public debate.” Crow and NBAI make no claim to the contrary.

Crow and NBAI instead contend that the primary purpose of the e mail was to convey to the principal the reason for Burke’s termination from the club—his commission of sexual abuse or sexual harassment—and thus that the communication related to the prevention of sexual abuse or sexual harassment. But even assuming that were true, we would not conclude that such a report, when made to a high school principal about a minor student, was intended to spur “public debate” about those issues.

To the contrary, both state and federal law require that elementary and secondary schools maintain the confidentiality of student records, including any records pertaining to discipline, and preclude the dissemination of such information publicly, except in very limited circumstances. (Ed. Code, § 49076; 20 U.S.C. § 1232g; Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1393, 1396.) The same requirement of confidentiality would pertain even if Burke’s conduct rose to the level of a crime; such charges, if levied against a minor, cannot be revealed to the public at large. “While most court records are available and open to the public for inspection, there are strong public policy reasons for keeping the records of juvenile proceedings confidential—among them, to protect children from adverse consequences and unnecessary emotional harm.” (S.V. v. Superior Court (2017) 13 Cal.App.5th 1174, 1180; J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1337 [“There is a strong public policy of confidentiality of juvenile records”].)

It is the fact that Burke was a minor whose alleged transgression occurred in the context of a school-related activity, along with the lack of any evidence that Crow and NBAI attempted to publicize their concerns to a wider audience, which distinguishes this case from Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 (Terry). In Terry, two youth group leaders sued their church after the church distributed a report detailing its investigation of reported misconduct involving adult group leaders and a youth group member, to the parents of other youth group members. Additionally, “the matter was referred to the Davis Police Department for investigation . . . .” (Id. at p. 1547.) It was not only that the subject matter of the church’s disclosure was an issue of public interest (ibid.), but also that the disclosure was intended to, and did, publicize the church’s findings on the matter that triggered application of the anti-SLAPP law. (FilmOn.com, supra, 7 Cal.5th at p. 146.)

In this case, by contrast, there is no evidence Crow and NBAI shared whatever concerns they might have had about Burke’s conduct with the parents of other club members, contacted the police about them, or publicized them generally. Instead, they reported the termination of Burke’s club membership to the high school principal, who had an interest in the matter because it affected Burke’s eligibility for class credits, without explicitly revealing their belief he had engaged in sexual abuse. The fact that they communicated Burke’s termination without specifying the acts of misconduct that prompted such action suggests that disclosure of the sensitive nature of the misconduct was not the primary goal of the communication. And the principal, in turn, was obligated to preserve the confidentiality of the report, as it involved the discipline of a minor student.

We conclude therefore that Crow and NBAI’s communication to the high school principal about the termination of Burke’s membership in the swim club was not designed to further the “public debate” regarding the prevention of sexual assault or sexual harassment. Consequently, the communication was not protected by the anti-SLAPP law, and the trial court erred by granting the motion to strike.

DISPOSITION

The judgment is reversed. Appellant’s motion to strike respondents’ brief, and his request for sanctions, are denied. The matter is remanded to the trial court for further proceedings. Burke is to recover his costs on appeal.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.