Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Akash Singh vs. Central Unified School District/CASE STRICKEN| Trellis.Law

On July 09, 2018 a Motion-Secondary was filed involving a dispute between Singh, Akash, and Central High School, Central Unified School District, Gutierrez, Ezequiel, for 13 Unlimited - Defamation in the District Court of Fresno County.

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I Micah K. Nilsson#250919
DOWLING AARON INCORPORATED
2 5080 California Avenue, Suite 340 E-FILED
Bakersfield, California 93309 10/24/2018 8:07 PM
a
J Tel: (661) 716-3000 FRESNO COUNTY SUPERIOR COURT
Fax: (661) 716-3005
4 mnilsson@dowlin gaaron. com
By: K. Daves, Deputy

5 Attorney for Plaintiff AKASH SINGH

8 SUPERIOR COURT OF CALIFORNIA OF THE STATE OF CALIIFORNIA
9 IN THE COI-INTY OF FRESNO, B.F. SISK COURTHOUSE
10

ll AKASH SINGH, Case No. I8CECG02478
t2 Plaintiff, PLAINTIFF'S OPPOSITION TO
DEFENDANTS' ANTI-SLAPP SPECIAL
13 v MOTION TO STRIKE
l4 CENTRAL LTNIFIED SCHOOL DISTRICT,
CENTRAL HIGH SCHOOL, EZEQUIEL
l5 GUTIERREZ, and DOES 1 to 100, inclusive,

16 Defendants.

I7
18

28
DOWLINGIAARON

PLAINTIFF'S OPPOSITION TO DEFENDANTS' ANTI-SLAPP SPECIAL MOTION TO STRIKE
I
2 Plaintiff Akash Singh ("Plaintiff') presents this Opposition to the Notice of Anti-Slapp
a
J Special Motion to Strike (the "Motion") filed by Defendants Central Unified School District,
4 Central High School, and Ezequiel Gutierrez (hereinafter collectively referred to as

5 "Defendants"), and represent as follows:

6 I. INTRODUCTION AND SUMMARY OF'ARGUMENT

7 The Anti-SLAPP motion of Defendants should be denied because Defendants failed to show
8 that Plaintiffs Complaint arises from protected speech. Even assuming, arguendo, that
9 Defendants did engage in a form or protected speech, the motion should be denied as Plaintiff
10 can show a probability of success on the merits. Defendants attempt to angle the facts of this
1l case to suggest that Defendants' statements happened during an active emergency or during a

t2 possible threat of school violence at Fresno Christian High School. However, Defendants leave
13 out several critical facts that show this was not the case:
t4 (1) Fresno Christian High School's school year had already ended.

15 (2) Plaintiff and his mom came to Central High School and explained the facts of the Snapchat
t6 post before Defendant Gutierrez ever spoke to anyone at Fresno Christian High School;
I7 a. Defendants purposely argue Plaintiff s Snapchat post seemed confusing by leaving
18 out the context of the post;
T9 b. The facts show Plaintiff made the post in response to a previous post. The context,
20 which Defendants were informed of removes arry support for Defendants'
2l interpretation that the post could be a threat or was related to Kayla Foster's death.
22 c. The facts show Plaintiff made and deleted the post before Kayla Foster was killed.
23 (3) In addition, Defendants' own statements contradict their argument that Plaintiffs post
24 caused a fight at Central High School, which appears to be Defendants' impetus to call Fresno
25 Christian (i.e., to protect other students).

26 A. Apptying the facts omitted by Defendants, Defendants' legal arguments are exposed as

27 baseless:

28
"ey#ìflflîie' PLAINTIFF'S OPPOSITION
2
TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
1 1. Defendants' arguments that California Çodg of Civil Procedure Section 425.16 applies
2 to this matter do not address the actual facts of the case:
I
J i. There was no official proceeding: Defendants claim that an investigation by a

4 school is an offrcial proceeding authorized by law. However, the case Defendants cite is
5 inapplicable to the facts of this case because Defendant Gutierrez made the statements to a
6 private school, not a public school. Further, Defendant Gutierrez made defamatory

7 statements to Fresno Christian personnel and parents of Central High students that were

I clearly outside the scope of any alleged investigation.

9 ii. The speech was not in connection with a public issue. Defendants attempt to
10 make the case about the tragic death of Kayla Foster. This suit has nothing to do with
11 Kayla's death. The issue was Plaintiff s social media post, which was unrelated to Kayla
12 Foster. Plaintiff and his mom sent to Central High School and explained the context of the
l3 post to Defendant Gutierrez. The defamatory statements made to Fresno Christian and
T4 parents of Central High students were made after Defendant Gutierrez knew that the social
15 media post was unrelated to Kayla Foster.

t6 2. Defendants' statements are not privileged under Civil Code section 47(þ): Defendants
T7 argue that a school investigation is considered an official proceeding authorized by law and so
18 the statements are privileged. However, Fresno Christian was not a public school so the
t9 privilege under Civil Code section 47(b) does not apply.

20 3. Defendants' statements are not privilesed under Civil Code section 47(c): Plaintiff has
2T provided evidence that Defendants' statements were made with malice due to Defendant

22 Gutierrez' s racial discrimination.

23 4. Defendants' statements were not statements made in connection to threats to commit
24 violence on school grounds: Civil Code Section 48.8 is not applicable. Defendants claim that
25 Defendant Gutierrez called Fresno Christian High to inform them of a threat to Central High
26 School students and Fresno Christian High Students. The facts show Fresno Christian was

27 closed for the summer (students were not on campus) and Plaintiff had already spoken with
28 Defendant Gutierrez prior to Defendant Gutierrez speaking with Fresno Christian. Further,
DOWLINGIAARON
3
PLAINTIFF'S OPPOSITION TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
1 Defendant Gutierrez didn't make the defamatory statements to Fresno Christian until a

2 significant period of time after the issue related to the social media post had been resolved.
a
J There was no threat to students at any time, and certainly at the time Defendants communicated

4 the defamatory statements to Fresno Christian. The evidence shows that the defamatory
5 statements were retaliatory and solely intended to cause Plaintiff harm.

6 5. Plaintiff has shown Defendant Gutieruez's statements were false: Defendants' false
7 statements included allegations that Plaintiff had posted multiple threats online, had committed

I a crime, and was a suspect in a criminal murder investigation. These statements were not true,

9 and Defendant Gutierrez knew the statements were not true. Defendant Gutierrez made the

10 statements due to his prejudices he had against Plaintiff.
11 6 Dlai-fifFo ôloi- crrnnnrfo i.fc of NTaoliaanf lJi.inn

12 Supervision and Retention: Plaintiff mentions Defendant Gutierrez's discrimination in both his
13 Government Claim and the Complaint. Also, Plaintiff argues that his claims were predicated on

t4 the same fundamental facts, Defendant Gutierrez's mistreatment of Plaintiff.

15 Based on the foregoing and as further explained below, Defendants' special motion to

t6 strike should be denied.

l7 II. RELEVANT FACTS AND PROCEDURAL HISTORY
18 During the 2016-2017 academic year, Plaintiff San Joaquin Memorial
attended High
t9 School located in Fresno, California. (Gutierrez DecI. 2:7) During that school year, Defendant
20 Gutierrez was employed by Memorial. (Id. 2:6-7). During the summer of 2017, Plaintiff left
2t Memorial and enrolled in Fresno Christian High School. (1d.2:12-13). Around the same time,
22 Defendant Gutierrez left Memorial to serve as Vice Principal at Central High School in the
23 Central Unified School District. (1d.2:8-10 and2:14).
24 On May 28,2017, Plaintiff posted on his Snapchat:

25 Free my nigga guïman he done wrong. Shouldn't have killed
Kobe but he did what he did for pete. #Justice4Gurman.
26
Plaintiff, "Guman" and "Pete" are friends. The "Snap" included a reference to Central
27
High student Kobe Foster. Kobe had been posting his own stories about this group of friends
28
DOWLINGIAARON
PLAINTIFF'S OPPOSITION TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
1 on social media. (Decl. of Akash Singh 11:6.) Specifically, Kobe was showing a picture of a
2 cell phone he had stolen from Preetinder "Pete" Dhaliwal . (Id. at 1:7.) This theft and other
a
J incidents had been reported to Defendant Gutienez at Central High School, but there was no

4 discipline imposed on Kobe for his actions. (Id.l2.) Kobe's "Snaps" were viewed as taunting
5 this group by showing that Kobe had no consequences for what he did. (Id.l:7-12)
6 On May 28, 2017, Gurman posted a picture of him getting a speeding ticket, and he

7 included a caption that said he was being arrested. (Id. At 1:3-14.) On May 28,2017, Plaintiff

8 made the above Snapchat post in response to Gurman's post. (Id. at 1:14-15.) At the time
9 PlaintifÎs post was made, Plaintiff knew that Gurman had not hurt anyone, just as he knew that
10 Gurman had not really been arrested. (Id. at l:17) The post was intended as a joke. (Id. fl 3.)

11 A few hours after Plaintiff posted the Snapchat post he decided the humor of the post
t2 had passed (as it was directly responsive to Gurman's post), and he removed the post. (Id. at

13 l:21-22). After he deleted his post, Plaintiff went to sleep. (Id. at I:23) Later that evening,
14 Kobe's sister, Kayla Foster, was killed. (Id. at l:23-24) Plaintiff learned that Kobe's sister had

15 been shot in a drive-by shooting the following morning after he made and deleted his Snapchat

T6 post referencing Kobe. (Id. at l:23-24). Plaintiff did not know of the incident with Kobe's
l7 sister when he made and later deleted his Snapchat post. In fact, Plaintiff made and deleted the

l8 'oSnap" prior to the shooting. (Id. at l:24-25). The shooting occurred at approximately 2:00

t9 a.m. (Defendants' Request for Judicial Notice "RJN", Exhibit 2.)

20 Later that day, Plaintiff learned that some people had taken screenshots of the post that
2T Plaintiff had deleted the night before, and that some people thought that Gurman and Plaintiff

22 might actually be involved in the death of Kobe's sister. (Id. at2:2-4).

23 Gurman's mother called Plaintiffs mother and asked that they go to Central High
24 campus to talk about the situation with Defendant Gutierrez. (Id. at 2:5-6). They agreed

25 because they wanted to clarify what really happened. (Id. at 2:6-7). When they arrived at the

26 Central High campus, Gurman's parents were already inside talking to Defendant Gutierrez.
27 (Id. at 2:8-8-9). Plaintiff and his mother waited outside of Defendant Gutierrez's office. (Id. at
28 2:9-10).
DOWLINGIAARON
5
PLAINTIFF'S OPPOSITION TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
1 After Gurman's parents finished their meeting, Gurman's mother told Plaintiff s mother
2 that Defendant Gutienez had told her that Plaintiff "was always a trouble maker" and
a
J Defendant Gutierrez has "always had problems with" Plaintiff. (Nagra Decl. fl9.) plaintifls
4 mother and Plaintiff then went into Defendant Gutierrez's office and explained the
5 circumstance surrounding the snapchat post. (singh Decl. 2:14-15).
6 The police were not involved in this matter. (Id. at 2:16). Plaintiff explained what
7 happened in person to Defendant Gutierrez prior to Defendant Gutierrez speaking with Fresno
8 Christian High. (Id. at2:16-17). After Plaintiff left his office, Defendant Gutierrez knew and
9 understood the situation and that there was not an emergency, that there was no need for further

10 investigation, and that no students were in danger (especially students at Fresno Christian,
1l which had previously concluded its school year). (Nagra Decr. flfl 13,14.)
t2 Defendant Gutierrez did not tell Plaintiff that he would be contacting Fresno Christian
13 High and he never asked Plaintiff for consent to disclose information about plaintiff or this
t4 incident. (Singh Decl. 2: 19-20). As indicated, Fresno Christian High School was not in session
15 at the time the communications occurred, so there was no safety risk at Fresno Christian, and
t6 no reason for Defendant Gutierrez to report anything to Fresno Christian except in hopes of
T7 having Plaintiff experience negative consequences since Plaintiff could not discipline Plaintiff
18 as he was no longer a student at his school. (Id. at2:21-24).

I9 Defendant Gutierrez contacted Fresno Christian High without Plaintiff s consent even
20 though the entire incident took place outside school hours and off school property. The
2l incident did not involve Central High or Fresno Christian. (Id. At 2:25-27). Defendant
22 Gutierrez told administrators at Fresno Christian things about Plaintiff that were untrue,
23 slandered his character, and harmed his reputation. (Id. at2:28-3:l). Even ifan investigation at

24 Central High had been initiated, which Plaintiff disputes, the communications made by
25 Defendant Gutierrez to parents of Central High students and to Fresno Christian were clearly
26 outside the scope of that investigation.

28
DOWLINGIAARON
6
PLAINTIFF'S OPPOSITION TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
1 III.LEGAL ARGUMENT
2 A. Defendant Bears Initial Burden to Make a Prima Facie Showing.
a
J A defendant who brings a special motion to strike under Code Civ. Proc. $ 425.l6bears

4 the initial burden of making a prima facie showing that the plaintifls cause of action arose

5 from the defendant's acts in furtherance of the defendant's right of free speech under the
6 United States or California Constitution in connection with a public issue. A defendant's

7 special motion to strike should be denied if the defendant fails to meet this initial prima facie

I showing (Abuemeirav. Stephens (2016)246Ca\. App.4th 1291,201Cal. Rptr. 3d437.)
9 1. Defendants' Motion Must Be Denied Because They Have Failed To Present
Admissible Evidence That Supports Their Motion.
10
Code of Civil Procedure $ 425.I5(b) (2) states, "In making its determination, the court
11
shall consider the ... supporting .. affrdavits stating the facts upon which the ... defense is
T2
based." (emphasis added) In making its ultimate determination, as to whether or not to grant
13
defendant's Motion, the court may only consider evidence that would be admissible at trial.
t4
(Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1497.) No relevant admissible trial evidence
15
has been submitted by Defendants that defeats Plaintiff s complaint.
I6
In Anti-SLAPP motions, as in summary judgment motions, "declarations that lack
T7
foundation or personal knowledge, or that are ffgumentative, speculative, impermissible
18
opinion, hearsay, or conclusoty are to be disregarded. [Citation.]" (Gilbert v. Sykes (2007) 147
t9
22 Cal.App. th13,26.)
20
The declaration of Dr. Torosian in support of the Motion does not have personal and
2t
first-hand knowledge regarding the events that transpired related to the suit. (Declaration of Dr.
22
Torosian 2:9-11) Anything Defendant Guiterez told him, assuming that is a source of his
23
information, is hearsay. Finally he acknowledges his lack of personal knowledge by stating
24
under penalty of perjury that his knowledge is based on information and belief. Evans v. (Jnkow
25
(1995) 38 Cal. App. 4th 1490,1497 - declarations on "information and belief' are hearsay and
26
inadmissible. Finally, he has failed to lay a proper factual and legal foundation for his opinion.
27
As such all his statements in declaration must be stricken.
28
DOWLINGIAARON
PLAINTIFF'S OPPOSITION TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
2. Defendants Failed To Show That The Plaintiffs Cause Of Action Arose From The
1 Defendants' Acts In Furtherance Of The Defendants' Right Of Free Speech
2
Defendants argue CCP 425.16 (the "Anti-SLAPP Statute") applies to the Complaint
a
J
because the "speech" was either (1) made before or in connection with an offrcial proceeding
4
authorized by law; or (2) was conduct exercising free speech in connection with an issue of
5
public interest. (Motion at 9:18 and 10:16-17).
6
There was No Official Proceeding.
^.
7
Defendants claim a communication to a school designed to prompt an investigation is
8
part of an offrcial proceeding. (Motion at 10:6-7). Defendants argue that:
9 Vice Principal GUTIERREZ's to Ms. Deffenbacher were provided
statements not only
to warn her about the tensions between students at their respective schools, but also so
l0 Fresno Christian High School could conduct its own investigation and take protective
measure for their own students.
11

t2 Defendants cite two cases to support their position; Martin v. Kearney (1975) 5I
Cal.App.3d 309,311; Lee v. Fick (2005) 135 Cal.App.4th 89, 96-97. The pertinent part for
13

Defendants argument can be summarized by the following section from Lee citing Martin:
t4
Civil Code section 47, subdivision (b) provides that any publication made in any
15 'Jud.icial o'in any
-Pryceeding" or. other-offrcial proceedin[ authorized by law" ís
privileged. The privilege is designed to provide the utmost fréedom of communication
I6 between is to
. and
citizens public. authoritìes whose responsibility investigate
wrongdoing. [citation-].Accordingly, communications to^an officiál agency intendeã to
t7 induce the agency to initiate action are part of an "official proceedingl" Thus
¡citation.]
it is well settled l4at complaints to school authorities abouf a þacheior þrincipal-in the
18 of his or her officia_l duties
g_eJþ¡m_anc_e are privileged. [citation.] Maitin v.- Kearney
(t97s) 5l Cal. App. 3d 309lI24 Cal. Rptr. 2811.)
I9
(Lee v. Fick (2005) 135 Cal.App.4th 89, 96.) However, here, there was no official
20
proceeding triggering Anti-SLAPP protection or Cal Civ Code g 47 ("Privilege").1 Here, unlike
2t
Martin v. Kearney and Lee v. Fick there was no "communication to an official agency
22
intending to induce the agency to initiate action." Here, there were communications to Fresno
^1

Christian High School, a domestic nonprofit entity. (Plaintiffs Request for Judicial Notice
24
"Rf|,tr", Ex.2)
25
A communication made in an "official proceeding authorizedby law'is reserved for
26

27 t
The anti-SLAPP statute and the Publication Privilegeare coextensive. (See Department of Fair Employment &
Housingv. I 105 Alta Loma Road Apartments, LLC (2007) 154 cal.App. th 1273, l2gg, fr.^.23,
28
DOWLINGIAARON
PLAINTIFF'S OPPOSITION TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
1 "official" governmental proceedings that are proceedings involving the government, an agency,

2 or quasi-judicial proceedings otherwise reviewable by writ of mandate. A purely private,

J^ nongovernmental activity that is not reviewable by writ of mandate is not covered. Courts have
4 refused to extend the privilege to a meeting of a board of directors of a nonprofit. (McMann v.

5 lladler (1961) 189 Cal.App.2d 124.) (See Hoadley v. Allen (1930) 108 Cal.App. 468,47t,l"a
6 private school has power to adopt rules for the regulation of its pupils, and to dismiss pupils
7 who violate them."].)

I Moreover, even if there was an official proceeding triggering protection, it dissipated,

9 and Defendant continued with the tortious conduct due to his discriminatory animus. A
10 privilege does not extend to words spoken unofficially. (Ketty v. Daro (1941) 47 Cal.App.2d,
11 418, 421.) A privilege also does not apply where the statements were not connected to the
t2 purpose of that investigation. (Frisk v. Merrihew (197 4) 42 Cal.App.3d 3 19.) The focus of the
13 statutes is the proceeding in which the publication occurs, "When the occasion arises, the right

I4 arises; when the occasion is past -- when the facts or relation cease to exist -- the right
15 disappears." (Prevost v. First western Bank (1987) 193 Cal.App.3d, 1492,l498.)
t6 The privilege attaches if the publication was made in any official proceedings

T7 authorized by law, was made to achieve the object of the litigation or proceeding and involved

18 litigants or other participants authorized by law. The court in Frisk v. Menihew (197$ a2

t9 Cal.App.3 d 319, 326, stated:

20 tflþg cases uniformly hold that even though a public officer in the first instance
establishes the existence of a privileged occãsioñ for a defamatory publication, he
2l ryay nevertheless be subject to liabilþ ifplaintiff persuades the fact finder ihat
the occasion was abused. The questiõn of whether a privileged occasion was
22 abused is for the determination of the jury unless tfü factõ permit but one
conclusion. [citation.] The facts of the insiant case do permit drawing more than
23 one conclusion and the question of whether the privilêged occasioniryas abused
cannot be determined as a matter of law.
24
In Frisk v. Merrihew Q97$ 42 Cal.App.3d 319, a defamation action based on a
25
derogatory statement at a public school board meeting by a defendant superintendent of the
26
school district and secretary of its board with respect to plaintiff, a teacher in another district,
27
who was in attendance as counsel for an interested parent and taxpayer, the trial court erred in
28
Þ9y"L"r|g.râlTgN
9
PLAINTIFF' S OPPOSITION TO DEFENDANTS' ANTI-SLAPP SPECIAL MOTION TO STRIKE
1 directing a verdict for defendant on the ground of the absolute privilege for official proceedings

2 where, though such a meeting may be duly classified as an official proceeding authorized by
a
J law, the evidence was in conflict as to whether the statement was made to achieve the object of
4 the meeting, and where the facts of the case permitted drawing more than one conclusion as to
5 whether the privileged occasion was abused.

6 Here, Defendant Gutierrez clearly states the ostensible purpose of the statements was
7 related to an investigation regarding Kayla or to prevent imminent school violence from
I occurring on May 30, 2017. (Motion at l4 l-3). However, the admissible facts show that
9 Fresno Christian High School's year had already ended. (Singh DecI.2:21). Also, Plaintiffand
l0 his mother came to Central High to explain the context of the post and how it had nothing to do

11 with the event involving Kayla and it clearly was not a threat in the context of Gurman's post.

l2 (Id. at 2:14-15) Accordingly, Defendant Gutierrez knew there was no threat, he knew Plaintiff

13 was not then at Fresno Christian, and he knew there was no immediate danger or any danger
I4 arising from the post.

15 b. There \ilas No Public Issue.

t6 The Statements of Defendant Gutierrez made to Fresno Christian were not made in
I7 connection with a public issue or issue of public interest. The courts of appeal have limited

18 speech or conduct protected by Code Civ. Proc. $ a25.16(e)(3) and (4) to two categories:

t9 Conduct in connection with an issue of "widespread public interest" and conduct in connection
20 with an issue of interest to a limited, but definable, portion of the public and occurring in the
2t context of an ongoing controversy, dispute, or discus sion (Golden Eagle Land Investment, L.P.

22 v. Rancho Santa Fe Assn. (2018) 19 Cal. App. 5th 399,418-419.)

23 Defendants attempt to argue that the case is about the death of Kayla Foster or that
24 Plaintifls post meant that Kalya Foster's brother should have been killed instead of her.

25 Defendants attempt to misdirect Defendant Gutierrez's statements to have been made in
26 connection with Kayla's death as an attempt to construe the comments as being connected with
27 a public issue. This action has nothing to do with Kayla's death or any investigation the school
28 conducted about her death. (Singh Decl. !J3.) Any relevant investigation was only about
E)O\/Ir'LINGIAARON
l0
PLAINTIFF'S OPPOSITION TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
I Plaintiff s post and, at most, the limited consequences of that post. Defendants describe a fight

2 at Central high School on May 30,2017 regarding the post. (Declaration of Ezequiel Gutierrez
^J 2:25-26). However, Defendant Gutierrez's describes this as "near fight" in his email of June 8,

4 2017. (Gutierrez Decl, Exhibit B). Defendants' contemporary statement contradicts
5 Defendants' attempt to present the post as creating a larger incident then it really did. The
6 evidence shows that the matter is, at most, related to a limited but definable portion of the
7 public.

I Only as a contingency argument do Defendants attempt to frame the issue in light of
9 Plaintiff s social media post. However, that is not accurate either. The issue is limited to
10 communications after Plaintiff s social media post, and after Plaintiff and his mother came to
11 the school and explained the context of the post. (Declaration of Akash Singh 2:14-15).
l2 Defendants' statements to Fresno Christian were made well after this meeting. (Nagra Decl. at

13 I2:14-I5.) This is relevant because when the issue is only of interest to a limited, but definable,
T4 segment of the population, the conduct must occur in the context of an ongoing controversy,
15 dispute, or discussion so that it warrants protection by a statute. (Du Charme v. International
t6 Brotherhood of ElectrÌcal Workers, Local 45 (2003) I 10 Cal. App. 4th 107 , 11S-1 19.) If there
t7 was ever an ongoing controversy, dispute, or discussion regarding the post that would satisfy
18 the requirement of a "public interest" it would not have existed after Plaintiff and his mother
t9 went to Central High to speak to Defendant Gutierrez. And yet, Defendants' defamatory
20 statements occurred well after that meeting; long after any potential controversy was resolved.

2T 3. Anti-SLAPP Motion Must Be Denied if Plaintiff Demonstrates a Probability of
22 Prevailing on the Claim.
23 Assuming arguendo this Court finds the Anti-SLAPP statute applies, the burden shifts to
24 Plaintiff to establish the "probability" that Plaintiff will prevail on the causes of action asserted

25 against the efendant. To establish the probability of prevailing, a plaintiff "need only establish
26 that his or her claim has 'minimal merit' fcitation] to avoid being stricken as a SLApp."
27 (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th at p. 29L ) However, a court should

28 neither "weigh credibility [nor] compare the weight of the evidence." Rather, the a court
DOWLINGIAARON
n
PLAINTIFF'S OPPOSITION TO DEFENDANTS'ANTI-SLAPP SPECIAL MOTION TO STRIKE
I accepts as true the evidence favorable to the plaintiff and evaluate the defendant's evidence
2 only to determine if it has defeated that submitted by the plaintiff as a matter of law. ed at269,
â
J fn.3.) As long as Plaintiff makes aprimafacia showing of admissible facts in support of the
4 causes of action, he has met his burden to establish the probability of prevailing, and defeats the
5 Motion.

6 a. Plaintiff Has Presented Evidence of Defamation Through False Statements.
7 The statements at issue in this case are defamatory. (See, Cal. Civ. Code $$ 44.)
8 Defendants falsely accused Plaintiff of making multiple threats online, said he had committed a

9 crime, and that he was a suspect in a criminal murder investigation. These accusations impugn
10 Plaintiffls character and are defamatory.

1l These statements were not true, and Defendant Gutierrez knew the statements were not
I2 true. Defendant Gutienez made the statements due to his prejudices he had against Plaintiff.

13 Fresno Christian School's staff stated that Defendant Gutierrez made these statements.
I4 (Gutierrez Decl., Ex. C.) All of the evidence shows these statements were not true. (Decl.
15 Nagra and Singh, passim) These, declarations provideed the Court with trial admissible
t6 evidence in support of the causes of actions alleged in the complaint.
I7 b. Defendant Gutierrez's Statements were not protected by Civil Code Section
47(b) or (c).
18
As shown above, Civil Code Section 47(b) does not apply to this cause of action
t9
because there was no official proceeding and it was not connected to a public interest.
20

2l As a separate but qualified immunity, Civil Code section 47(c) codifies the "common
interest" privilege, which immunizes parties from liability for non-malicious statements made
22
to others on a topic of common interest. (Lundquist v. Reusser (Igg4) 7 Cal.4th 1193, I Ig4.) A
23
showing of actual malice defeats the privilege and may be "established by a showing that the
24

25
publication was motivated by hatred or ill will towards the plaintiff or by a showing that the
defendant lacked reasonable grounds for belief in the truth of the publication and therefore
26

27
acted in reckless disregard of the plaintiffs rights." (Roemer v. Retøil Credit Co. (1975) 44
cal.App.3d 926,936.) Malice may be inferred here from the circumstances.
28
DOWLINGIAARON
t2
PLAINTIFF'S OPPOSITION TO DEFENDANTS' ANTI-SLAPP SPECIAL MOTION TO STRIKE
1 The allegations surroundirig the circumstances may indicate malice. (Arvizu v. Wat-
2 Mart Stores, Inc. (N.D.Cal. Feb. 27,2017, No. 17-cv-00201-LB) 2017 U.S.Dist.LEXIS 27342,
J^ at *12.) Here, Plaintiff "was subject to inappropriate race-based bias by Defendant Gutierrez.
4 (Singh, Decl; Nagra Decl.; Dhaliwal Decl.; and Ahnajar, Decl., passim.) The history and
5 evidence from other students is sufficient for a jury to infer that Defendants' comments were
6 motivated by discrimination and Plaintifls history with Defendant Gutierrez. When faced with
7 the information surrounding the post, no reasonable person could think the students at Fresno
I Christian were in danger - the school was closed. Further Defendant Gutierrez knew Plaintiff
9 was not at school and was in his office with Plaintiffls mother. Defendant Gutierez knew the
10 context of the post, had been showed that it had no relation to the killing of another student or
11 \ryas a threat to any other student. Defendants' proffered explanation for the motivation of the
12 statements to Fresno Christian is demonstratbly false and should hold no weight. Defendants
13 cannot rely on Civil Code Section a7@).
I4 4. Defendants Statements Were Not Statements Made In Connection To Threats To
Commit Violence On School Grounds:
15
Civil Code Section 48.8 does protect Defendants. Defendants all but admit that Defendant
t6
Gutierrez's communication to Fresno Christian "was made with knowledge of its falsity and or
t7
with reckless disregard for the truth or falsity of the communication." Defendants' motion

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McGuire, Rosemary Track Judge’s New Case

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October 24, 2018

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July 09, 2018

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Motion-Secondary: Akash Singh vs. Central Unified School District/CASE STRICKEN

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