Jasper Allen, et al. v. Marianne D’Emidio-Caston
Case No: 19CV03871
Hearing Date: Tue Sep 10, 2019 9:30

Nature of Proceedings: Motion Strike Complaint

Special Motion to Strike of Defendant

ATTORNEYS:

For Plaintiffs Jasper Allen and Debra Jackson: Self-represented

For Defendant Marianne D’Emidio-Caston: Craig Price, Joseph M. Sholder, Griffith & Thornburgh, LLP

RULING: For the reasons set forth herein, the special motion to strike of defendant Marianne D’Emidio-Caston is granted. The Court strikes the entirety of the complaint of plaintiffs Jasper Allen and Debra Jackson. The Court finds that defendant Caston is the prevailing defendant entitled to an award of attorney fees and costs against plaintiffs to be fixed as provided by law.

Background

On July 24, 2019, plaintiffs Jasper Allen and Debra Jackson filed their complaint in this action asserting causes of action for defamation against defendant Marianne D’Emidio-Caston (Caston).

The complaint alleges:

Plaintiffs Allen and Jackson are the founders of the Open Academic School/ Open Academic School Santa Barbara Charter (OASSB). (Complaint, pp. 2, 53-4.)

On July 24, 2018, the Santa Barbara Unified School District (SBUSD) Board held a hearing to consider the OASSB Charter petition approval. (Complaint, p. 2.) Prior to the hearing, on July 23, 2018, Caston sent a letter to the SBUSD Board containing lies about Allen and Jackson. (Complaint, p. 2.) As a result of Caston’s July 23 letter, Board President Jacqueline Reid “verbally slandered and attacked [Allen’s and Jackson’s] character, integrity, honor and work ethic” during a live televised public Board meeting of the SBUSD Board to approve the OASSB charter petition. (Complaint, p. 2.)

The complaint asserts six counts of defamation against Caston, all of which arise out of Caston’s letter to the SBUSD Board regarding the Board’s pending action on the OASSB Charter petition.

On August 7, 2019, Caston filed this special motion to strike (also known as an anti-SLAPP motion). Caston asserts that all causes of action of the complaint arise out of protected activity within the meaning of Code of Civil Procedure section 425.16 and that the plaintiffs have no likelihood of success on the merits because the actions are barred by the privilege set forth in Civil Code section 47.

Plaintiffs oppose the motion arguing that the privilege does not apply and that Caston’s statements constitute defamation per se.

Analysis

“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 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).)

“The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure. [Citations.] A court may strike a cause of action only if the cause of action (1) arises from an act in furtherance of the right of petition or free speech ‘in connection with a public issue,’ and (2) the plaintiff has not established ‘a probability’ of prevailing on the claim. [Citation.]” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619-620.)

“A defendant satisfies the first step of the analysis by demonstrating that the ‘conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) [of section 425.16]’ [citation], and that the plaintiff’s claims in fact arise from that conduct [citation]. The four categories in subdivision (e) describe conduct ‘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.’ [Citation.]” (Rand Resources, LLC v. City of Carson, supra, 6 Cal.5th at p. 620.)

“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.” (Code Civ. Proc., § 425.16, subd. (e).)

“According to subdivision (e)(2) of section 425.16, ‘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’ is 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.’ By requiring the communication to be in connection ‘with an issue under consideration or review’ [citation], the terms of subdivision (e)(2) make clear that ‘it is insufficient to assert that the acts alleged were “in connection with” an official proceeding.’ [Citation.] Instead, ‘[t]here must be a connection with an issue under review in that proceeding.’ [Citations.]” (Rand Resources, LLC v. City of Carson, supra, 6 Cal.5th at p. 620.)

As to the first prong of the two-step analysis, the causes of action here clearly arise out of protected activity within the meaning of section 425.16. Plaintiffs allege the publication of the defamation to have taken place first by communication of the letter to the SBUSD Board and then to the public during a SBUSD Board meeting by a member of the Board while the Board was considering the charter petition of plaintiffs. These allegations fall squarely within the terms of subdivision (e)(1) (any “written or oral statement … made before … [an] … official proceeding authorized by law”) and (e)(2) (any “written or oral statement … made in connection with an issue under consideration or review by … [an] … official proceeding authorized by law”). (See City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 423 [city councilmembers’ participation in city council meetings and statements made by city council members is constitutionally protected activity]; Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175 [letters written regarding project under consideration by city council and planning commission protected activity].) Plaintiffs do not contend otherwise in opposition, confining their argument to the application of the Civil Code section 47 privilege.

The Court concludes that Caston has met her burden to satisfy the first prong of the anti-SLAPP analysis that the complaint, and each cause of action, arises out of protected activity.

“If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation.]

The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, fn. omitted.)

First, “[a]s to the second step, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’ [Citations.]” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) Although plaintiffs’ opposition is verified, the opposition sets forth no evidence in support of the merits of their complaint. Instead, plaintiffs’ opposition is limited to argument as to the applicability of the privilege of Civil Code section 47. On this basis, plaintiffs have failed to meet their burden as to the second prong of the anti-SLAPP analysis.

Second, and alternatively, even if the underlying facts alleged in the complaint were accepted as true for purposes of this motion (contrary to the above requirements for admissible evidence), plaintiffs still fail to meet their burden because Civil Code section 47 applies to bar their defamation claim.

“A privileged publication or broadcast is one made:

“(a) In the proper discharge of an official duty.

“(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure ….” (Civ. Code, § 47, subds. (a), (b).)

Plaintiffs argue that section 47, subdivision (a), does not apply because Caston is not a high ranking federal or state official, and that subdivision (b) does not apply because it is against the public interest, citing Bradley v. Hartford Accident & Indemnity Co. (1973) 30 Cal.App.3d 818, and because the privilege does not apply in cases of malice. Plaintiffs are wrong on each point. (Note: Former Civil Code section 47, subdivisions (1) and (2) were relettered in 1990 as subdivisions (a) and (b). (Stats. 1990, ch. 1491, § 1.))

In Royer v. Steinberg (1979) 90 Cal.App.3d 490 (Royer) a school board passed a motion in a public meeting asserting facts about the district’s superintendent that the superintendent claimed was libelous. (Id. at pp. 496-497.) The superintendent sued the three board trustees who voted in favor of the motion. (Id. at p. 497.) In reversing the trial court’s judgment for the superintendent, the Royer court held that the statements were privileged by section 47, subdivision (a) and (b) (formerly, subdivisions (1) and (2)):

“[T]he privilege of section 47, [former] subdivision 1 [now, subdivision (a)] protects any statement by a public official, so long as it is made (a) while exercising policy-making functions, and (b) within the scope of his official duties. [¶] It is clear that the publication of the March 25 motion falls within this category. The board of school trustees is an administrative agency created by statute [citations] and constitutes the local governing body of the school district. [Citation.] Appellant trustees were its duly elected members [citation] and were therefore vested with policy making powers. The March 25 motion was unquestionably within the scope of appellants’ official duties. It was made at a public meeting of the board which was authorized by law [citation], and related to a matter properly within the board’s jurisdiction—the disciplining of one of its employees. [Citations.] Therefore, the statements were entitled to an absolute privilege under Civil Code section 47, subdivision 1.” (Royer, supra, 90 Cal.App.3d at p. 501.)

“Section 47, subdivision 2, which confers absolute immunity upon all publications made in any ‘legislative,’ ‘judicial’ or ‘other official proceeding authorized by law,’ has been held applicable to statements made in the course of all legislative, quasi-legislative and administrative board proceedings. [Citation.] Thus, slanderous utterances by members of a city council at a regular meeting [citation], letters read in the course of such meetings [citation], written protests before a planning commission acting on a use variance application [citation], and letters of complaint written to a board of education which were intended to prompt official action [citation], have all been cloaked with the privilege afforded by this section.” (Royer, supra, 90 Cal.App.3d at p. 503.)

“In [Frisk v. Merrihew (1974) 42 Cal.App.3d 319], the court specifically classified meetings of a school district board of trustees as ‘official proceedings’ within the purview of section 47, subdivision 2(3). [Citation.] Since, as noted above, the board acts as a local governing body for the school district, we believe that board meetings authorized by law also constitute ‘legislative proceedings’ within the meaning of section 47, subdivision 2(1). [¶] The only qualification on the privilege granted to statements made in the course of proceedings enumerated in section 47, subdivision 2 is that the publication have some connection or logical relation to the proceeding. [Citations.]” (Royer, supra, 90 Cal.App.3d at p. 503.)

The alleged facts are that the defamatory publication occurred first by written communication to the SBUSD Board and then by a member of the Board in a public meeting considering the plaintiffs’ petition, with the defamatory publication relating specifically to the plaintiffs and that proceeding. The privilege of Civil Code section 47, subdivision (b) clearly applies to the communication by Caston in connection with a public issue. To the extent that the causes of action assert some vicarious liability as a result of the statements by the SBUSD Board President at the meeting, the communications are also privileged under subdivision (a).

Plaintiffs nonetheless argue that the privilege does not apply because it is not in the public interest and that there is malice. With respect to the public interest, plaintiffs cite in support of their argument Bradley v. Hartford Accident & Indemnity Co. (1973) 30 Cal.App.3d 818. As Caston points out, Bradley v. Hartford Accident & Indemnity Co. was disapproved on the point for which plaintiffs cite it by the California Supreme Court in Silberg v. Anderson (1990) 50 Cal.3d 205, 219.

With respect to plaintiff’s argument regarding malice, “ ‘California law recognizes two types of privileged communications—communications which are absolutely privileged and communications which are qualifiedly or conditionally privileged. If absolutely privileged, there is no liability even if the defamatory communication is made with actual malice. If the privilege is only conditional or qualified, a finding of malice will prevent the communication from being found privileged.’ [Citations.]” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912.) The privileges of section 47, subdivisions (a) and (b) discussed here are absolute privileges and “are unaffected by the existence of malice.” (Royer, supra, 90 Cal.App.3d at p. 500.)

Consequently, even if the Court ignored plaintiffs’ failure to provide evidence and assumed the truth of plaintiffs’ allegations, plaintiffs’ defamation claims would be barred by the privilege of Civil Code section 47, subdivision (b). Plaintiffs have not met their burden on the second prong to the anti-SLAPP analysis.

As set forth above, defendant Caston has met her burden on the first prong of the anti-SLAPP analysis and plaintiffs have not met their burden on the second prong of the anti-SLAPP analysis. Defendant Caston’s motion will therefore be granted.

With exceptions not applicable here, “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) The Court finds that Caston is the prevailing defendant entitled to an award of attorney fees and costs to be fixed as provided by law.