Preview
[Exempt from payment of filing fees
pursuant to Government Code § 6103]
1 LOUIS A. LEONE (SBN 099874)
KATHLEEN DARMAGNAC (SBN 150843)
2
LEONE ALBERTS & DUUS
3 1390 Willow Pass Rd., Ste. 700
Concord, California 94520
4 Telephone: (925) 974-8600
5
Facsimile: (925) 974-8601
6 Attorneys for Defendant
POPE VALLEY UNION ELEMENTARY SCHOOL
7 DISTRICT
8
IN THE SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF NAPA
10
11 CHARLES J. BERRY, an individual, Case No.: 19CV000733
12
Plaintiff,
13 REPLY IN SUPPORT OF DEFENDANT
v. POPE VALLEY UNION ELEMENTARY
14 SCHOOL DISTRICT’S SPECIAL MOTION
POPE VALLEY UNION ELEMENTARY TO STRIKE
15
SCHOOL DISTRICT,
16 NAPA COUNTY OFFICE OF [CCP § 425.16]
EDUCATION, and
17 DOES 1 to 10, inclusive, Hearing date: May 5, 2022
18
Time: 8:30 a.m.
Defendants. Dept: B
19
Remittitur Filed: 1/12/2022
20 Third Amended Complaint Filed: 2/14/2022
21
Complaint Filed: 5/15/2019
22
23
24
25
26
27
28
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1
2 INTRODUCTION
3 Ironically, while Plaintiff Charles Berry (“Plaintiff”) opposes the instant motion on
4 purported technicalities, he files his Opposition well beyond the statutory deadline for submitting
5 his papers. Pursuant to Code of Civil Procedure section 1005(b) (“Section 1005(b)”), “[a]ll
6 papers opposing a motion so noticed shall be filed with the court and a copy served on each
7 party at least nine court days … before the hearing.” The hearing in this matter is scheduled for
8 May 12, 2022. (Dkt., “SPECIAL MOTION TO STRIKE,” (May 12, 2022).) Accordingly, Plaintiff’s
9 opposition papers were due on April 29, 2022. 1 However, as set forth in the proof of service,
10 and Plaintiff’s own declaration, Plaintiff did not complete nor serve his briefing until May 3,
11 2022. (Oppo. Proof of Service; Decl. of Charles Berry ¶ 2.) As a result, the undersigned counsel
12 had less than 48 hours to prepare this reply briefing, in the midst of its other professional and
13 personal obligations, to satisfy the five-court day deadline set forth in Section 1005(b). (Code
14 Civ. Proc., § 1005, subd. (b).) In doing so, the undersigned counsel did not even have the
15 opportunity to address Plaintiff’s objections to evidence, nor raise its own objections.
16 “A lay person, who is not indigent, and who exercises the privilege of trying his own case
17 must expect and receive the same treatment as if represented by an attorney….” (Taylor v. Bell
18 (1971) 21 Cal.App.3d 1002, 1009.) To that end, not only does this Court have the discretion to
19 refuse to consider Plaintiff’s late-filed papers, (Cal. R. Ct. 3.1300(d)); but even should this Court
20 entertain the possibility of considering them, it must first apply the standards set forth in Code of
21 Civil Procedure section 473, and find excusable neglect for their untimeliness, (Kapitanski v.
22 Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32-33). Plaintiff appears entirely unaware of the
23 fact that he untimely submitted his opposition briefing, let alone proffer excusable neglect.
24 Accordingly, if this Court is of the mind to determine the instant motion based upon the type of
25 technicalities Plaintiff champions, it should start – and end – with refusing to consider the
26 arguments raised in the Opposition.
27
28
1 The preceding court days were April 29, May 2, May 3, May 4, May 5, May 6, May 9, May 10,
and May 11, 2022.
1
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 Additionally, on substantive grounds, the arguments raised in Plaintiff’s untimely briefing
2 fail to save his now fourth 2 abortive attempt of a pleading, repeatedly attempting to distort case
3 opinions in unrecognizable manners, and simply ignoring those case opinions fatal to his
4 arguments.
5 For these reasons, as discussed in more detail below, not only should the Court grant
6 the instant motion, but should further award Defendant Pope Valley Union Elementary School
7 District (“District”) its attorneys’ fees associated with this matter.
8 ARGUMENT
9 I. The Parties Agree on the Two-Step Analysis
10 To the extent the Court considers the arguments raised in the Opposition, Plaintiff
11 appears to agree that the Court should determine this motion using the two-step analysis set
12 forth by the California Supreme Court in Baral v. Schnitt (2016) 1 Cal.5th 376, 384-85. (Oppo.
13 p. 2.) Specifically, (1) if the District establishes that a claim arises from protected activity, the
14 Court must grant the motion as to that claim unless (2) Plaintiff can establish a probability of
15 success on the merits. (Baral, at 384-85.)
16 II. Plaintiff’s Arguments that the Conduct in Question Does Not Qualify as “Protected
17 Activity” Misconstrue Legal Authority to the Contrary
18 A. The Two Letters Were Protected Activity under Hicks and Okori
19 As set forth in the District’s moving papers, each cause of action raised against the
20 District in the operative Third Amended Complaint (“TAC”), other than the seventh cause of
21 action, is based upon the allegations that Superintendent of the District (Ken Burkhart) injured
22 Plaintiff through the following conduct: (1) speaking with the students in class as part of his
23 investigation into Plaintiff’s misconduct; (2) sending the two letters to the Napa County Office of
24 Education (“NCOE”) and the Commission on Teacher Credentialing (“CTC”); and (3) making
25 statements to law enforcement that resulted in a criminal investigation. As also set forth in the
26
27
28
2 Plaintiff filed (1) an original complaint on May 15, 2019; (2) a first amended complaint on July
31, 2019; (3) a second amended complaint on November 25, 2019; and (4) the operative third
amended complaint on February 14, 2022. (See Dkt.)
2
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 District’s moving papers, each of these activities constituted conduct protected by the anti-
2 SLAPP statute.
3 In doing so, to support its contention that “(2)” sending the letters were protected activity,
4 the District cited Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1176, which found that a letter
5 written by a parent concerning alleged misconduct by a principal to the principal’s supervisors
6 was protected activity because it “implicates issues of public interest, including providing
7 schoolchildren with an appropriate education….;” as well as Okorie v. Los Angeles Unified Sch.
8 Dist. (2017) 14 Cal.App.5th 574, 594, which similarly found that letters sent by a school district
9 to parents and the credentialing commission regarding an investigation into a teacher
10 constituted protected activity because “[i]t is well established that internal investigations
11 constitute an ‘official proceeding authorized by law,’ which is another of the categories of
12 protected activity under the anti-SLAPP statute.” In his Opposition, Plaintiff attempts to
13 distinguish Hicks on the ground that the target of the investigation in that matter was a principal
14 “that many people were interested in,” whereas the instant matter concerns a substitute teacher
15 “that no one was interested in.” (Oppo. p. 6.) Of course, Plaintiff does not proffer any legal
16 authority for the contention that whether a communication concerns an upper-level or lower-
17 level public school district employee, rather than any public school district employee in general,
18 is a factor in determining whether a statement is considered one of “public interest.” Moreover,
19 as expressly stated in Hicks, communications concerning “providing schoolchildren with an
20 appropriate education” are statements of public interest, which is exactly the type of statements
21 made within the letters in question. (TAC Exhs. J, K.)
22 With regard to Okorie, Plaintiff merely objects to the lack of page references in the
23 District’s citation to that case, and the fact that Okorie was overruled in part on other grounds –
24 specifically, that the two-step analysis should be conducted on a claim-by-claim basis (as this
25 motion contemplates), not a cause of action-by-cause of action basis, Bonni v. St. Joseph
26 Health System (2021) 11 Cal.5th 995, 1010-12. 3 (Oppo. p. 6.) In other words, the partial
27
28
3 In short, if a single cause of action alleges three different acts of defamation, and a defendant
files an anti-SLAPP motion against the cause of action, and court must consider whether each
3
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 overruling in Bonni had nothing to do with Okorie’s finding that communications made in relation
2 to internal investigations are protected activity.
3 Understanding that the applicable case law supports the instant motion, Plaintiff next
4 argues, without citation to case authority, that the letters should lose their protected status
5 because (1) Mr. Burkart allegedly lacked authority to send the letters in question; (2) the letters
6 failed to include the names and contact information of the witnesses interviewed as part of the
7 underlying investigation; (3) no statement by a public employee is allegedly ever protected by
8 the anti-SLAPP statute; and (4) the underlying investigation that led to the letters was
9 conducted during classroom time. (Oppo. pp. 4-5.) Again, none of these arguments are
10 supported by any reference to case citation. Moreover, title 5 California Code of Regulations
11 section 80303, subdivision (a), expressly provides, “The superintendent of an employing school
12 district shall report a change in employment status to the Commission….” (Emphasis added.)
13 Accordingly, as the District’s superintendent, Mr. Burkart very much had the authority to send
14 the letters in question. Next, the fact that the letters did not disclose the names and addresses
15 of the school children and other witnesses interviewed by Mr. Burkart to protect those witnesses
16 from potential harassment does not render those letters as no longer implicating a public
17 interest. Rather, it simply means an interested party could have later requested the missing
18 information. In addition, there is ample case law protecting statements by public employees
19 under the anti-SLAPP provisions. (See e.g., Okorie, supra, 14 Cal.App.5th 574 at 574; Hansen
20 v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537.) Finally, the idea
21 that Mr. Burkart’s interviews with school children somehow no longer implicate a public interest
22 because they occurred during school hours, rather than requiring the children to come to school
23 early or stay late, is nonsensical, at best.
24 B. The Student Discussions Were Protected Activity under Okori and Hansen
25 To support its contention that “(1)” Mr. Burkart speaking with the students in class as part
26 of his investigation was protected activity, the District again cited Okori, as well as Hansen,
27
28
individual alleged act of defamation is protected or not, rather than trying to meld all of the acts
together and make a single, cause-of-action-wide determination. (Bonni, supra, at 1010-12.)
4
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 surpa, 171 Cal.App.4th at 1544, which expressly found that internal investigations are official
2 proceedings, and any statements and writings made in connection with those investigations
3 constitute activity protected under the anti-SLAPP statute. Again, in his Opposition, Plaintiff fails
4 to raise any substantive argument against the holding in Okori. Similarly, Plaintiff also fails to
5 raise any substantive argument against the holding in Hansen. Rather, Plaintiff simply contends
6 – without citation to legal authority – that the student discussions are not protected because
7 they occurred during school hours. (Oppo. p. 6.) Again, the contention is frivolous.
8 C. The Law Enforcement Statements Were Protected Activity under Schaffer
9 Finally, to support its contention that “(3)” the statements to law enforcement were
10 protected activity, the District cited Schaffer v. City & County of San Francisco (2008) 168
11 Cal.App.4th 992, 999, which expressly noted the rule that communications to a district attorney
12 or police officer, and attempts to press charges are protected under the anti-SLAPP provisions.
13 (See also Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286.) In his Opposition, Plaintiff
14 contends that Schaffer is in applicable because in that particular case the communications in
15 question were made by police officers rather than members of the public. (Oppo. p. 7.)
16 However, Plaintiff entirely ignores the part of the Schaffer analysis citing to Salma for the
17 proposition that “communications with district attorney and police and attempts to press charges
18 [a]re communications seeking official investigations into perceived wrongdoing and thus
19 protected by § 425.16.” (Schaffer, at 999.) Indeed, Salma involved a cause of action for
20 intentional interference arising in part on a member of the public contacting local law
21 enforcement agencies alleging criminal conduct. (Salma, at 1285.) The Court of Appeal found
22 these contacts were protected activity as requests for the initiation of official proceedings. (Id. at
23 1286.) Accordingly, criminal complaints made by the public at large, like those made by law
24 enforcement officials, are considered protected activity under the anti-SLAPP statute.
25 D. The Actions of the District’s Legal Counsel Was Also Protected Activity
26 As discussed in the moving papers, the Seventh Cause of Action alleges that the
27 District’s legal counsel engaged in abuse of the legal process by raising claims against Plaintiff
28 that the attorney allegedly knew to be false. However, in support of its contention that the
5
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 conduct was protected activity, the District cited Jarrow Formulas, Inc. v. LaMarche (2003) 31
2 Cal.4th 728, 734-35, which expressly held that “by its terms, section 425.16 potentially may
3 apply to every malicious prosecution action, because every such action arises from an
4 underlying lawsuit, or petition to the judicial branch.” Likewise, the District also cited Chavez v.
5 Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088, which expressly held that “[i]t is well
6 established that filing a lawsuit is an exercise of a party’s constitutional right to petition. … [T]he
7 filing of a judicial complaint satisfies the ‘in connection with a public issue’ component of section
8 425.16, subdivision (b)(1) because it pertains to an official proceeding. … [A]lthough no
9 published California decision has specifically considered the question whether a malicious
10 prosecution claim can be subject to the anti-SLAPP statute, several California appellate courts
11 have recently held section 425.16 applicable to causes of action that are functionally
12 indistinguishable from malicious prosecution claims.” In his Opposition, Plaintiff merely
13 contends that Jarrow and Chavez “only indicate a possible Sec. 425.16 violation, not the
14 invariable application that Pope Valley implies,” but fails to provide any argument as to why this
15 particular litigation should be treated differently from the norm. (Oppo. p. 7.) Moreover, Chavez
16 gives every indication that all malicious prosecution claims are subject to anti-SLAPP
17 procedures. “We conclude that the trial court erred in determining that Chavezes’ malicious
18 prosecution complaint was not subject to anti-SLAPP procedures.” (Chavez, at 1090.)
19 III. Plaintiff Fails to Proffer Any Evidence Establishing a Probability of Prevailing on
20 the Merits of His Claims
21 A. Plaintiff Has Failed to Establish a Probability of Success for the First, Second, Third,
22 Fourth, Seventh and Eighth Causes of Action
23 As discussed above, once a moving defendant establishes that a claim arises from
24 protected activity, the burden then shifts to the prosecuting plaintiff to establish a probability of
25 success on the merits. (Baral, supra, 1 Cal.5th at 384-385.) “The plaintiff’s showing must be
26 based upon admissible evidence.” (Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 980.) In short,
27 Plaintiff is required to demonstrate that his claims are supported by enough admissible
28 evidence that, if credited, would be sufficient to sustain a favorable judgment. (Hicks, supra, 39
6
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 Cal.App.5th at p. 1177.) However, as discussed in the moving papers, Plaintiff cannot meet that
2 standard for the first, second, third, fourth, seventh and eighth causes of action because each
3 of those claims are barred by the litigation privilege afforded by Civil Code section 47,
4 subdivision (b).
5 In response, Plaintiff simply contends that Section 47(b) immunity does not apply
6 because Mr. Bukart’s letters to NCOE and CTC “are not the pertinent subject matter of any
7 cause of action within the TAC, nor is there any legally cognizable parallel between those
8 letters and the action of Mr. Burkart complained of in the TAC.” (Oppo. p. 8.) However, this
9 argument fails for two reasons. First, simply contending that the conduct in question is not
10 absolutely privileged fails to satisfy Plaintiff’s burden of producing admissible evidence that he
11 has a probability of success on these causes of action. Again, it is Plaintiff who bears the
12 burden of production in this matter. Given that Plaintiff has failed to even attempt to satisfy that
13 burden, 4 the Court should grant the instant motion on that ground alone. Second, as explained
14 in Lebbos v. State Bar (1985) 165 Cal.App.3d 656, Section 47(b) covers significantly more than
15 merely letters. “[A]ny communication with an official agency designed to prompt investigation by
16 that agency is absolutely privileged. … Finally, it is well settled that absolute privilege extends in
17 quasi-judicial proceedings to preliminary interviews and conversations with potential witnesses.”
18 (165 Cal.App.3d at 668.) Here, the second and eighth causes of action concern Mr. Burkart’s
19 preliminary interviews of the school children. (TAC p. 25:24-27, 27:13-18.) The third cause of
20 action concerns communications between Mr. Burkhart, other District employees, and NCOE
21 employees discussing the allegations of wrongdoing connected to the investigation of Plaintiff.
22 (TAC ¶ 19, 26:2-6.) The fourth cause of action concerns the statements Mr. Burkart allegedly
23 made to law enforcement that resulted in a criminal investigation. (TAC ¶ 18, 14:1-6.) And the
24
25 4 Concurrently with his Opposition, Plaintiff served a Declaration of Charles Berry, which
26 included 18 single-sentenced, random testimonial statements. The only testimonial statement
referenced in the substantive opposition is Plaintiff’s claim that he never received a copy of Mr.
27 Burkart’s letter to the CTC. (Oppo. p. 4.) Two others are referenced in Plaintiff’s objections to
28
the evidence submitted by the District in its moving papers. (Oppo. pp. 10, 11.) However, none
are proffered as admissible evidence to establish a likelihood of prevailing on any of the causes
of action. (See Oppo.)
7
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 seventh cause of action concerns the District’s legal counsel raising claims against Plaintiff.
2 (TAC p. 27:1-4.) Given that each of these claims are based upon communications which are
3 absolutely privileged under the scope of Section 47(b), pursuant to Lebbos, it is impossible for
4 Plaintiff to establish a likelihood of success concerning them.
5 Finally, with regard to the first cause of action, Plaintiff merely contends that Section
6 47(b) does not apply to malicious prosecution actions. This argument also fails for two reasons.
7 First, again, Plaintiff does not proffer any admissible evidence to establish a likelihood of
8 prevailing on this claim. Second, Plaintiff’s contention is not an accurate statement of the law.
9 As explained in Lebbos, simply labeling a cause of action as “malicious prosecution” does not
10 shield it from Section 47(b). Indeed, CACI recognizes several different types of “malicious
11 prosecution,” including “Abuse of Process.” CACI, §§ 1500 et al. Yet, as held in Lebbos, “even if
12 [a defendant] acted maliciously in sending [] complaints to [an agency]…, such actions remain
13 privileged. [] On the basis of the absolute immunity conferred by Civil Code section 47,
14 subdivision 2, the trial court properly sustained the [] demurrer to the following cause[] of action:
15 … abuse of process….” (Lebbos, supra, 165 Cal.App.3d at 669; see also Litinsky, supra, 40
16 Cal.App.5th at 970 [dismissing malicious prosecution claim pursuant to anti-SLAPP statute].)
17 Here, the first cause of action is based upon the allegation that “Mr. Burkhart engaged in
18 malicious prosecution by writing his letter to the CTC.” (TAC p. 25:15.) In other words, Plaintiff
19 complains of “sending [] complaints to [an agency],” the exact type of conduct Lebbos found
20 absolutely privileged under Civil Code section 47(b). As such, Plaintiff cannot establish a
21 likelihood of success on the first cause of action either.
22 B. Plaintiff Has Failed to Establish a Liberty Interest in the Fifth Cause of Action
23 The fifth cause of action for deprivation of Procedural Due Process is based on the
24 allegation that Mr. Burkhart conducted his investigation without “any meaningful procedures
25 whatsoever.” (TAC p. 26:16-20.) As discussed in the moving papers, Plaintiff had no property
26 interest in his at-will substitute teacher position triggering procedural due process protection.
27 Understanding he had no such property interest, Plaintiff now contends in his Opposition that
28 he had a liberty interest in the disciplinary process to protect his standing and association in the
8
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 community. (Oppo. at 9.) However, first, again, merely arguing the existence of a liberty interest
2 does not satisfy Plaintiff’s burden of producing admissible evidence to establish a likelihood of
3 prevailing on the claim. Second, a due process claim is not triggered by any type of reputational
4 affront, but rather only where governmental action challenges the honesty or morality of a
5 person. (Guzman v. Shewry (9th Cir. 2008) 544 F.3d 1073, 1086.) Here, the District did neither.
6 It simply stopped using Plaintiff as a substitute teacher because he (1) led a class discussion on
7 the good attributes of Adolf Hitler; (2) led a discussion that the moon landing was fake; (3)
8 asked a student if he was watching “porn hub” when the student quickly closed his laptop as
9 Plaintiff approached; and (4) offered to provide students an extracurricular lesson on
10 reproduction. (TAC Exhs. J, K.) In addition, the United States Supreme Court has determined
11 that reputation alone does not trigger procedural due process protection. At least one other
12 liberty or property interest must accompany such a reputation claim. (Paul v. Davis (1976) 424
13 U.S. 693, 711; see also Guerrero v. CNMI State Bd. of Educ. (N.M.I.D. May, 30, 2018) 2018
14 U.S. Dist. LEXIS 92481, *8.) To the extent Plaintiff alleges that the accompanying interest is the
15 pursuit of an occupation of one’s choice, such an interest is only triggered when governmental
16 action causes “a complete prohibition on the right to engage in a calling….” (Guzman, supra,
17 544 F.3d at 1085.) Here, the only limitation placed upon Plaintiff is his ability to teach in Napa
18 County. (TAC, Exhs. L, M.) Accordingly, aside from failing to produce any admissible evidence,
19 Plaintiff cannot even establish a likelihood that a liberty claim is even legally cognizable based
20 upon the allegations, let alone a likelihood of prevailing on any such action.
21 C. Plaintiff Has Failed to Establish a Cognizable Section 1983 Claim in the Sixth Cause
22 of Action
23 Plaintiff’s sixth cause of action is for gender and sex discrimination under 42 U.S.C. §
24 1983 (“Section 1983”). (TAC p. 26:21-26.) As set forth in the moving papers, California public
25 school districts are not subject to Section 1983 claims. In response, Plaintiff simply contends
26 that the authorities finding that public school districts are not subject to such actions “do not
27 concern free speech, and thus have no SLAPP traction.” (Oppo. pp. 9-10.) Of course, this
28 argument is a non-sequitor, as the point of these authorities is that Plaintiff cannot in any way
9
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 establish a likely of prevailing on his Section 1983 claim against the District, because the law
2 does not recognize any such cause of action.
3 CONCLUSION
4 For the reasons set forth above and in the moving papers, the District respectfully
5 requests that its special motion to strike be granted as requested.
6
7
Dated: May 5, 2022 LEONE ALBERTS & DUUS
8
9 _____________________________________
10
JIMMIE E. JOHNSON
Attorneys for Defendant POPE VALLEY UNION
11 ELEMENTARY SCHOOL DISTRICT
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 Re: Charles J. Berry v. Pope Valley Union Elementary School District
Napa County Superior Court Case No.: 19CV000733
2
3 PROOF OF SERVICE
4 I, the undersigned, declare that I am employed in the City of Concord, State of California.
5 I am over the age of 18 years and not a party to the within cause; my business address is 1390
6 Willow Pass Road, Suite 700, Concord, California.
7 On May 5, 2022, I served the following documents:
8 1. REPLY IN SUPPORT OF DEFENDANT POPE VALLEY UNION ELEMENTARY
SCHOOL DISTRICT’S SPECIAL MOTION TO STRIKE
9
10
on the following interested party(s) in said cause:
11 PLAINTIFF, IN PRO PER COUNSEL FOR DEFENDANT NAPA
Charles J. Berry COUNTY OFFICE OF EDUCATION
12 P.O. Box 9714 Megan Symonds
13
Berkeley, CA 94709 Jordan Meyer
Tel.: (707) 987-2665 Edrington, Schrimer & Murphy
14 Email: bookman@mcn.org 2300 Contra Costa Blvd., Suite 450
Pleasant Hill, CA 94523
15
Tel: (925) 827-3300
16 Fax : (925) 827-3320
Email: msymonds@esmlawfirm.com;
17 jmeyer@esmlawfirm.com;
dana@esmlawfirm.com
18
19 ATTORNEY GENERAL
Rob Bonta, Attorney General
20 Office of the Attorney General,
State of California
21
455 Golden Gate Avenue, #11000
22 San Francisco, CA 94102
Tel: (916) 210-6276
23
VIA MAIL - CCP §§ 1013(a), 2015.5
24
By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above
25
and placing each for collection and mailing on that date following ordinary business
26 practices. I am readily familiar with my firm's business practice of collection and
processing of correspondence for mailing with the United States Postal Service and
27 correspondence placed for collection and mailing would be deposited with the United
28
States Postal Service at Concord, California, with postage thereon fully prepaid, that
same day in the ordinary course of business.
11
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
1 VIA OVERNIGHT MAIL/COURIER - CCP §§ 1031(c), 2015.5
2
By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above,
3 and placing each for collection by overnight mail service, or overnight courier service. I
am readily familiar with my firm's business practice of collection and processing of
4 correspondence/documents for overnight mail or overnight courier service, and that it is
5
to be delivered to an authorized courier or driver authorized by the overnight mail carrier
to receive documents, with delivery fees paid or provided for, that same day, for delivery
6 on the following business day.
7 VIA FACSIMILE - CCP §§ 1013(e), CRC 2008
8 By arranging for facsimile transmission from facsimile number 925-974-8601 to the
9
above listed facsimile number(s) prior to 5:00 p.m. I am readily familiar with my firm's
business practice of collection and processing of correspondence via facsimile
10 transmission(s) and any such correspondence would be transmitted via facsimile to the
designated numbers in the ordinary course of business. The facsimile transmission(s)
11
was reported as complete and without error.
12
VIA ELECTRONIC MAIL TRANSMISSION - CCP §1010.6
13
By electronic transmission via email to the authorized electronic service address(es)
14
listed above.
15
VIA HAND-DELIVERY - CCP §§ 1011, 2015.5
16
By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above,
17 and causing each envelope(s) to be hand-served on that day by D&T SERVICES in the
ordinary course of my firm's business practice.
18
19 I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct and that this declaration was executed on May 5, 2022, at
21 Concord, California.
22
23 _________________________________
KATHERINE ALEXANDER
24
25
26
27
28
12
___________________________________________________________________________________________
REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE
Preview
[Exempt from payment of filing fees pursuant to Government Code § 6103] 1 LOUIS A. LEONE (SBN 099874) KATHLEEN DARMAGNAC (SBN 150843) 2 LEONE ALBERTS & DUUS 3 1390 Willow Pass Rd., Ste. 700 Concord, California 94520 4 Telephone: (925) 974-8600 5 Facsimile: (925) 974-8601 6 Attorneys for Defendant POPE VALLEY UNION ELEMENTARY SCHOOL 7 DISTRICT 8 IN THE SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF NAPA 10 11 CHARLES J. BERRY, an individual, Case No.: 19CV000733 12 Plaintiff, 13 REPLY IN SUPPORT OF DEFENDANT v. POPE VALLEY UNION ELEMENTARY 14 SCHOOL DISTRICT’S SPECIAL MOTION POPE VALLEY UNION ELEMENTARY TO STRIKE 15 SCHOOL DISTRICT, 16 NAPA COUNTY OFFICE OF [CCP § 425.16] EDUCATION, and 17 DOES 1 to 10, inclusive, Hearing date: May 5, 2022 18 Time: 8:30 a.m. Defendants. Dept: B 19 Remittitur Filed: 1/12/2022 20 Third Amended Complaint Filed: 2/14/2022 21 Complaint Filed: 5/15/2019 22 23 24 25 26 27 28 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 2 INTRODUCTION 3 Ironically, while Plaintiff Charles Berry (“Plaintiff”) opposes the instant motion on 4 purported technicalities, he files his Opposition well beyond the statutory deadline for submitting 5 his papers. Pursuant to Code of Civil Procedure section 1005(b) (“Section 1005(b)”), “[a]ll 6 papers opposing a motion so noticed shall be filed with the court and a copy served on each 7 party at least nine court days … before the hearing.” The hearing in this matter is scheduled for 8 May 12, 2022. (Dkt., “SPECIAL MOTION TO STRIKE,” (May 12, 2022).) Accordingly, Plaintiff’s 9 opposition papers were due on April 29, 2022. 1 However, as set forth in the proof of service, 10 and Plaintiff’s own declaration, Plaintiff did not complete nor serve his briefing until May 3, 11 2022. (Oppo. Proof of Service; Decl. of Charles Berry ¶ 2.) As a result, the undersigned counsel 12 had less than 48 hours to prepare this reply briefing, in the midst of its other professional and 13 personal obligations, to satisfy the five-court day deadline set forth in Section 1005(b). (Code 14 Civ. Proc., § 1005, subd. (b).) In doing so, the undersigned counsel did not even have the 15 opportunity to address Plaintiff’s objections to evidence, nor raise its own objections. 16 “A lay person, who is not indigent, and who exercises the privilege of trying his own case 17 must expect and receive the same treatment as if represented by an attorney….” (Taylor v. Bell 18 (1971) 21 Cal.App.3d 1002, 1009.) To that end, not only does this Court have the discretion to 19 refuse to consider Plaintiff’s late-filed papers, (Cal. R. Ct. 3.1300(d)); but even should this Court 20 entertain the possibility of considering them, it must first apply the standards set forth in Code of 21 Civil Procedure section 473, and find excusable neglect for their untimeliness, (Kapitanski v. 22 Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32-33). Plaintiff appears entirely unaware of the 23 fact that he untimely submitted his opposition briefing, let alone proffer excusable neglect. 24 Accordingly, if this Court is of the mind to determine the instant motion based upon the type of 25 technicalities Plaintiff champions, it should start – and end – with refusing to consider the 26 arguments raised in the Opposition. 27 28 1 The preceding court days were April 29, May 2, May 3, May 4, May 5, May 6, May 9, May 10, and May 11, 2022. 1 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 Additionally, on substantive grounds, the arguments raised in Plaintiff’s untimely briefing 2 fail to save his now fourth 2 abortive attempt of a pleading, repeatedly attempting to distort case 3 opinions in unrecognizable manners, and simply ignoring those case opinions fatal to his 4 arguments. 5 For these reasons, as discussed in more detail below, not only should the Court grant 6 the instant motion, but should further award Defendant Pope Valley Union Elementary School 7 District (“District”) its attorneys’ fees associated with this matter. 8 ARGUMENT 9 I. The Parties Agree on the Two-Step Analysis 10 To the extent the Court considers the arguments raised in the Opposition, Plaintiff 11 appears to agree that the Court should determine this motion using the two-step analysis set 12 forth by the California Supreme Court in Baral v. Schnitt (2016) 1 Cal.5th 376, 384-85. (Oppo. 13 p. 2.) Specifically, (1) if the District establishes that a claim arises from protected activity, the 14 Court must grant the motion as to that claim unless (2) Plaintiff can establish a probability of 15 success on the merits. (Baral, at 384-85.) 16 II. Plaintiff’s Arguments that the Conduct in Question Does Not Qualify as “Protected 17 Activity” Misconstrue Legal Authority to the Contrary 18 A. The Two Letters Were Protected Activity under Hicks and Okori 19 As set forth in the District’s moving papers, each cause of action raised against the 20 District in the operative Third Amended Complaint (“TAC”), other than the seventh cause of 21 action, is based upon the allegations that Superintendent of the District (Ken Burkhart) injured 22 Plaintiff through the following conduct: (1) speaking with the students in class as part of his 23 investigation into Plaintiff’s misconduct; (2) sending the two letters to the Napa County Office of 24 Education (“NCOE”) and the Commission on Teacher Credentialing (“CTC”); and (3) making 25 statements to law enforcement that resulted in a criminal investigation. As also set forth in the 26 27 28 2 Plaintiff filed (1) an original complaint on May 15, 2019; (2) a first amended complaint on July 31, 2019; (3) a second amended complaint on November 25, 2019; and (4) the operative third amended complaint on February 14, 2022. (See Dkt.) 2 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 District’s moving papers, each of these activities constituted conduct protected by the anti- 2 SLAPP statute. 3 In doing so, to support its contention that “(2)” sending the letters were protected activity, 4 the District cited Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1176, which found that a letter 5 written by a parent concerning alleged misconduct by a principal to the principal’s supervisors 6 was protected activity because it “implicates issues of public interest, including providing 7 schoolchildren with an appropriate education….;” as well as Okorie v. Los Angeles Unified Sch. 8 Dist. (2017) 14 Cal.App.5th 574, 594, which similarly found that letters sent by a school district 9 to parents and the credentialing commission regarding an investigation into a teacher 10 constituted protected activity because “[i]t is well established that internal investigations 11 constitute an ‘official proceeding authorized by law,’ which is another of the categories of 12 protected activity under the anti-SLAPP statute.” In his Opposition, Plaintiff attempts to 13 distinguish Hicks on the ground that the target of the investigation in that matter was a principal 14 “that many people were interested in,” whereas the instant matter concerns a substitute teacher 15 “that no one was interested in.” (Oppo. p. 6.) Of course, Plaintiff does not proffer any legal 16 authority for the contention that whether a communication concerns an upper-level or lower- 17 level public school district employee, rather than any public school district employee in general, 18 is a factor in determining whether a statement is considered one of “public interest.” Moreover, 19 as expressly stated in Hicks, communications concerning “providing schoolchildren with an 20 appropriate education” are statements of public interest, which is exactly the type of statements 21 made within the letters in question. (TAC Exhs. J, K.) 22 With regard to Okorie, Plaintiff merely objects to the lack of page references in the 23 District’s citation to that case, and the fact that Okorie was overruled in part on other grounds – 24 specifically, that the two-step analysis should be conducted on a claim-by-claim basis (as this 25 motion contemplates), not a cause of action-by-cause of action basis, Bonni v. St. Joseph 26 Health System (2021) 11 Cal.5th 995, 1010-12. 3 (Oppo. p. 6.) In other words, the partial 27 28 3 In short, if a single cause of action alleges three different acts of defamation, and a defendant files an anti-SLAPP motion against the cause of action, and court must consider whether each 3 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 overruling in Bonni had nothing to do with Okorie’s finding that communications made in relation 2 to internal investigations are protected activity. 3 Understanding that the applicable case law supports the instant motion, Plaintiff next 4 argues, without citation to case authority, that the letters should lose their protected status 5 because (1) Mr. Burkart allegedly lacked authority to send the letters in question; (2) the letters 6 failed to include the names and contact information of the witnesses interviewed as part of the 7 underlying investigation; (3) no statement by a public employee is allegedly ever protected by 8 the anti-SLAPP statute; and (4) the underlying investigation that led to the letters was 9 conducted during classroom time. (Oppo. pp. 4-5.) Again, none of these arguments are 10 supported by any reference to case citation. Moreover, title 5 California Code of Regulations 11 section 80303, subdivision (a), expressly provides, “The superintendent of an employing school 12 district shall report a change in employment status to the Commission….” (Emphasis added.) 13 Accordingly, as the District’s superintendent, Mr. Burkart very much had the authority to send 14 the letters in question. Next, the fact that the letters did not disclose the names and addresses 15 of the school children and other witnesses interviewed by Mr. Burkart to protect those witnesses 16 from potential harassment does not render those letters as no longer implicating a public 17 interest. Rather, it simply means an interested party could have later requested the missing 18 information. In addition, there is ample case law protecting statements by public employees 19 under the anti-SLAPP provisions. (See e.g., Okorie, supra, 14 Cal.App.5th 574 at 574; Hansen 20 v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537.) Finally, the idea 21 that Mr. Burkart’s interviews with school children somehow no longer implicate a public interest 22 because they occurred during school hours, rather than requiring the children to come to school 23 early or stay late, is nonsensical, at best. 24 B. The Student Discussions Were Protected Activity under Okori and Hansen 25 To support its contention that “(1)” Mr. Burkart speaking with the students in class as part 26 of his investigation was protected activity, the District again cited Okori, as well as Hansen, 27 28 individual alleged act of defamation is protected or not, rather than trying to meld all of the acts together and make a single, cause-of-action-wide determination. (Bonni, supra, at 1010-12.) 4 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 surpa, 171 Cal.App.4th at 1544, which expressly found that internal investigations are official 2 proceedings, and any statements and writings made in connection with those investigations 3 constitute activity protected under the anti-SLAPP statute. Again, in his Opposition, Plaintiff fails 4 to raise any substantive argument against the holding in Okori. Similarly, Plaintiff also fails to 5 raise any substantive argument against the holding in Hansen. Rather, Plaintiff simply contends 6 – without citation to legal authority – that the student discussions are not protected because 7 they occurred during school hours. (Oppo. p. 6.) Again, the contention is frivolous. 8 C. The Law Enforcement Statements Were Protected Activity under Schaffer 9 Finally, to support its contention that “(3)” the statements to law enforcement were 10 protected activity, the District cited Schaffer v. City & County of San Francisco (2008) 168 11 Cal.App.4th 992, 999, which expressly noted the rule that communications to a district attorney 12 or police officer, and attempts to press charges are protected under the anti-SLAPP provisions. 13 (See also Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286.) In his Opposition, Plaintiff 14 contends that Schaffer is in applicable because in that particular case the communications in 15 question were made by police officers rather than members of the public. (Oppo. p. 7.) 16 However, Plaintiff entirely ignores the part of the Schaffer analysis citing to Salma for the 17 proposition that “communications with district attorney and police and attempts to press charges 18 [a]re communications seeking official investigations into perceived wrongdoing and thus 19 protected by § 425.16.” (Schaffer, at 999.) Indeed, Salma involved a cause of action for 20 intentional interference arising in part on a member of the public contacting local law 21 enforcement agencies alleging criminal conduct. (Salma, at 1285.) The Court of Appeal found 22 these contacts were protected activity as requests for the initiation of official proceedings. (Id. at 23 1286.) Accordingly, criminal complaints made by the public at large, like those made by law 24 enforcement officials, are considered protected activity under the anti-SLAPP statute. 25 D. The Actions of the District’s Legal Counsel Was Also Protected Activity 26 As discussed in the moving papers, the Seventh Cause of Action alleges that the 27 District’s legal counsel engaged in abuse of the legal process by raising claims against Plaintiff 28 that the attorney allegedly knew to be false. However, in support of its contention that the 5 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 conduct was protected activity, the District cited Jarrow Formulas, Inc. v. LaMarche (2003) 31 2 Cal.4th 728, 734-35, which expressly held that “by its terms, section 425.16 potentially may 3 apply to every malicious prosecution action, because every such action arises from an 4 underlying lawsuit, or petition to the judicial branch.” Likewise, the District also cited Chavez v. 5 Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088, which expressly held that “[i]t is well 6 established that filing a lawsuit is an exercise of a party’s constitutional right to petition. … [T]he 7 filing of a judicial complaint satisfies the ‘in connection with a public issue’ component of section 8 425.16, subdivision (b)(1) because it pertains to an official proceeding. … [A]lthough no 9 published California decision has specifically considered the question whether a malicious 10 prosecution claim can be subject to the anti-SLAPP statute, several California appellate courts 11 have recently held section 425.16 applicable to causes of action that are functionally 12 indistinguishable from malicious prosecution claims.” In his Opposition, Plaintiff merely 13 contends that Jarrow and Chavez “only indicate a possible Sec. 425.16 violation, not the 14 invariable application that Pope Valley implies,” but fails to provide any argument as to why this 15 particular litigation should be treated differently from the norm. (Oppo. p. 7.) Moreover, Chavez 16 gives every indication that all malicious prosecution claims are subject to anti-SLAPP 17 procedures. “We conclude that the trial court erred in determining that Chavezes’ malicious 18 prosecution complaint was not subject to anti-SLAPP procedures.” (Chavez, at 1090.) 19 III. Plaintiff Fails to Proffer Any Evidence Establishing a Probability of Prevailing on 20 the Merits of His Claims 21 A. Plaintiff Has Failed to Establish a Probability of Success for the First, Second, Third, 22 Fourth, Seventh and Eighth Causes of Action 23 As discussed above, once a moving defendant establishes that a claim arises from 24 protected activity, the burden then shifts to the prosecuting plaintiff to establish a probability of 25 success on the merits. (Baral, supra, 1 Cal.5th at 384-385.) “The plaintiff’s showing must be 26 based upon admissible evidence.” (Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 980.) In short, 27 Plaintiff is required to demonstrate that his claims are supported by enough admissible 28 evidence that, if credited, would be sufficient to sustain a favorable judgment. (Hicks, supra, 39 6 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 Cal.App.5th at p. 1177.) However, as discussed in the moving papers, Plaintiff cannot meet that 2 standard for the first, second, third, fourth, seventh and eighth causes of action because each 3 of those claims are barred by the litigation privilege afforded by Civil Code section 47, 4 subdivision (b). 5 In response, Plaintiff simply contends that Section 47(b) immunity does not apply 6 because Mr. Bukart’s letters to NCOE and CTC “are not the pertinent subject matter of any 7 cause of action within the TAC, nor is there any legally cognizable parallel between those 8 letters and the action of Mr. Burkart complained of in the TAC.” (Oppo. p. 8.) However, this 9 argument fails for two reasons. First, simply contending that the conduct in question is not 10 absolutely privileged fails to satisfy Plaintiff’s burden of producing admissible evidence that he 11 has a probability of success on these causes of action. Again, it is Plaintiff who bears the 12 burden of production in this matter. Given that Plaintiff has failed to even attempt to satisfy that 13 burden, 4 the Court should grant the instant motion on that ground alone. Second, as explained 14 in Lebbos v. State Bar (1985) 165 Cal.App.3d 656, Section 47(b) covers significantly more than 15 merely letters. “[A]ny communication with an official agency designed to prompt investigation by 16 that agency is absolutely privileged. … Finally, it is well settled that absolute privilege extends in 17 quasi-judicial proceedings to preliminary interviews and conversations with potential witnesses.” 18 (165 Cal.App.3d at 668.) Here, the second and eighth causes of action concern Mr. Burkart’s 19 preliminary interviews of the school children. (TAC p. 25:24-27, 27:13-18.) The third cause of 20 action concerns communications between Mr. Burkhart, other District employees, and NCOE 21 employees discussing the allegations of wrongdoing connected to the investigation of Plaintiff. 22 (TAC ¶ 19, 26:2-6.) The fourth cause of action concerns the statements Mr. Burkart allegedly 23 made to law enforcement that resulted in a criminal investigation. (TAC ¶ 18, 14:1-6.) And the 24 25 4 Concurrently with his Opposition, Plaintiff served a Declaration of Charles Berry, which 26 included 18 single-sentenced, random testimonial statements. The only testimonial statement referenced in the substantive opposition is Plaintiff’s claim that he never received a copy of Mr. 27 Burkart’s letter to the CTC. (Oppo. p. 4.) Two others are referenced in Plaintiff’s objections to 28 the evidence submitted by the District in its moving papers. (Oppo. pp. 10, 11.) However, none are proffered as admissible evidence to establish a likelihood of prevailing on any of the causes of action. (See Oppo.) 7 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 seventh cause of action concerns the District’s legal counsel raising claims against Plaintiff. 2 (TAC p. 27:1-4.) Given that each of these claims are based upon communications which are 3 absolutely privileged under the scope of Section 47(b), pursuant to Lebbos, it is impossible for 4 Plaintiff to establish a likelihood of success concerning them. 5 Finally, with regard to the first cause of action, Plaintiff merely contends that Section 6 47(b) does not apply to malicious prosecution actions. This argument also fails for two reasons. 7 First, again, Plaintiff does not proffer any admissible evidence to establish a likelihood of 8 prevailing on this claim. Second, Plaintiff’s contention is not an accurate statement of the law. 9 As explained in Lebbos, simply labeling a cause of action as “malicious prosecution” does not 10 shield it from Section 47(b). Indeed, CACI recognizes several different types of “malicious 11 prosecution,” including “Abuse of Process.” CACI, §§ 1500 et al. Yet, as held in Lebbos, “even if 12 [a defendant] acted maliciously in sending [] complaints to [an agency]…, such actions remain 13 privileged. [] On the basis of the absolute immunity conferred by Civil Code section 47, 14 subdivision 2, the trial court properly sustained the [] demurrer to the following cause[] of action: 15 … abuse of process….” (Lebbos, supra, 165 Cal.App.3d at 669; see also Litinsky, supra, 40 16 Cal.App.5th at 970 [dismissing malicious prosecution claim pursuant to anti-SLAPP statute].) 17 Here, the first cause of action is based upon the allegation that “Mr. Burkhart engaged in 18 malicious prosecution by writing his letter to the CTC.” (TAC p. 25:15.) In other words, Plaintiff 19 complains of “sending [] complaints to [an agency],” the exact type of conduct Lebbos found 20 absolutely privileged under Civil Code section 47(b). As such, Plaintiff cannot establish a 21 likelihood of success on the first cause of action either. 22 B. Plaintiff Has Failed to Establish a Liberty Interest in the Fifth Cause of Action 23 The fifth cause of action for deprivation of Procedural Due Process is based on the 24 allegation that Mr. Burkhart conducted his investigation without “any meaningful procedures 25 whatsoever.” (TAC p. 26:16-20.) As discussed in the moving papers, Plaintiff had no property 26 interest in his at-will substitute teacher position triggering procedural due process protection. 27 Understanding he had no such property interest, Plaintiff now contends in his Opposition that 28 he had a liberty interest in the disciplinary process to protect his standing and association in the 8 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 community. (Oppo. at 9.) However, first, again, merely arguing the existence of a liberty interest 2 does not satisfy Plaintiff’s burden of producing admissible evidence to establish a likelihood of 3 prevailing on the claim. Second, a due process claim is not triggered by any type of reputational 4 affront, but rather only where governmental action challenges the honesty or morality of a 5 person. (Guzman v. Shewry (9th Cir. 2008) 544 F.3d 1073, 1086.) Here, the District did neither. 6 It simply stopped using Plaintiff as a substitute teacher because he (1) led a class discussion on 7 the good attributes of Adolf Hitler; (2) led a discussion that the moon landing was fake; (3) 8 asked a student if he was watching “porn hub” when the student quickly closed his laptop as 9 Plaintiff approached; and (4) offered to provide students an extracurricular lesson on 10 reproduction. (TAC Exhs. J, K.) In addition, the United States Supreme Court has determined 11 that reputation alone does not trigger procedural due process protection. At least one other 12 liberty or property interest must accompany such a reputation claim. (Paul v. Davis (1976) 424 13 U.S. 693, 711; see also Guerrero v. CNMI State Bd. of Educ. (N.M.I.D. May, 30, 2018) 2018 14 U.S. Dist. LEXIS 92481, *8.) To the extent Plaintiff alleges that the accompanying interest is the 15 pursuit of an occupation of one’s choice, such an interest is only triggered when governmental 16 action causes “a complete prohibition on the right to engage in a calling….” (Guzman, supra, 17 544 F.3d at 1085.) Here, the only limitation placed upon Plaintiff is his ability to teach in Napa 18 County. (TAC, Exhs. L, M.) Accordingly, aside from failing to produce any admissible evidence, 19 Plaintiff cannot even establish a likelihood that a liberty claim is even legally cognizable based 20 upon the allegations, let alone a likelihood of prevailing on any such action. 21 C. Plaintiff Has Failed to Establish a Cognizable Section 1983 Claim in the Sixth Cause 22 of Action 23 Plaintiff’s sixth cause of action is for gender and sex discrimination under 42 U.S.C. § 24 1983 (“Section 1983”). (TAC p. 26:21-26.) As set forth in the moving papers, California public 25 school districts are not subject to Section 1983 claims. In response, Plaintiff simply contends 26 that the authorities finding that public school districts are not subject to such actions “do not 27 concern free speech, and thus have no SLAPP traction.” (Oppo. pp. 9-10.) Of course, this 28 argument is a non-sequitor, as the point of these authorities is that Plaintiff cannot in any way 9 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 establish a likely of prevailing on his Section 1983 claim against the District, because the law 2 does not recognize any such cause of action. 3 CONCLUSION 4 For the reasons set forth above and in the moving papers, the District respectfully 5 requests that its special motion to strike be granted as requested. 6 7 Dated: May 5, 2022 LEONE ALBERTS & DUUS 8 9 _____________________________________ 10 JIMMIE E. JOHNSON Attorneys for Defendant POPE VALLEY UNION 11 ELEMENTARY SCHOOL DISTRICT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 Re: Charles J. Berry v. Pope Valley Union Elementary School District Napa County Superior Court Case No.: 19CV000733 2 3 PROOF OF SERVICE 4 I, the undersigned, declare that I am employed in the City of Concord, State of California. 5 I am over the age of 18 years and not a party to the within cause; my business address is 1390 6 Willow Pass Road, Suite 700, Concord, California. 7 On May 5, 2022, I served the following documents: 8 1. REPLY IN SUPPORT OF DEFENDANT POPE VALLEY UNION ELEMENTARY SCHOOL DISTRICT’S SPECIAL MOTION TO STRIKE 9 10 on the following interested party(s) in said cause: 11 PLAINTIFF, IN PRO PER COUNSEL FOR DEFENDANT NAPA Charles J. Berry COUNTY OFFICE OF EDUCATION 12 P.O. Box 9714 Megan Symonds 13 Berkeley, CA 94709 Jordan Meyer Tel.: (707) 987-2665 Edrington, Schrimer & Murphy 14 Email: bookman@mcn.org 2300 Contra Costa Blvd., Suite 450 Pleasant Hill, CA 94523 15 Tel: (925) 827-3300 16 Fax : (925) 827-3320 Email: msymonds@esmlawfirm.com; 17 jmeyer@esmlawfirm.com; dana@esmlawfirm.com 18 19 ATTORNEY GENERAL Rob Bonta, Attorney General 20 Office of the Attorney General, State of California 21 455 Golden Gate Avenue, #11000 22 San Francisco, CA 94102 Tel: (916) 210-6276 23 VIA MAIL - CCP §§ 1013(a), 2015.5 24 By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above 25 and placing each for collection and mailing on that date following ordinary business 26 practices. I am readily familiar with my firm's business practice of collection and processing of correspondence for mailing with the United States Postal Service and 27 correspondence placed for collection and mailing would be deposited with the United 28 States Postal Service at Concord, California, with postage thereon fully prepaid, that same day in the ordinary course of business. 11 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE 1 VIA OVERNIGHT MAIL/COURIER - CCP §§ 1031(c), 2015.5 2 By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, 3 and placing each for collection by overnight mail service, or overnight courier service. I am readily familiar with my firm's business practice of collection and processing of 4 correspondence/documents for overnight mail or overnight courier service, and that it is 5 to be delivered to an authorized courier or driver authorized by the overnight mail carrier to receive documents, with delivery fees paid or provided for, that same day, for delivery 6 on the following business day. 7 VIA FACSIMILE - CCP §§ 1013(e), CRC 2008 8 By arranging for facsimile transmission from facsimile number 925-974-8601 to the 9 above listed facsimile number(s) prior to 5:00 p.m. I am readily familiar with my firm's business practice of collection and processing of correspondence via facsimile 10 transmission(s) and any such correspondence would be transmitted via facsimile to the designated numbers in the ordinary course of business. The facsimile transmission(s) 11 was reported as complete and without error. 12 VIA ELECTRONIC MAIL TRANSMISSION - CCP §1010.6 13 By electronic transmission via email to the authorized electronic service address(es) 14 listed above. 15 VIA HAND-DELIVERY - CCP §§ 1011, 2015.5 16 By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, 17 and causing each envelope(s) to be hand-served on that day by D&T SERVICES in the ordinary course of my firm's business practice. 18 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct and that this declaration was executed on May 5, 2022, at 21 Concord, California. 22 23 _________________________________ KATHERINE ALEXANDER 24 25 26 27 28 12 ___________________________________________________________________________________________ REPLY IN SUPPORT OF SPECIAL MOTION TO STRIKE