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Whitney, Thompson & Jeffcoach LLP
Kristi D. Marshall, #274625
kmarshall@wtjlaw.com
F. William Jackson, #271255 E-FILED
wjackson@wtjlaw.com 10/30/2018 11:41 AM
8050 N. Palm Avenue, Suite 110 FRESNO COUNTY SUPERIOR COURT
Fresno, California 93711 By: K. Daves, Deputy
Telephone: (559) 753-2550
Facsimile: (559) 795-2560
Attomeys for Defendants CENTRAL UNIFIED
SCHOOL DISTRICT, CENTRAL HIGH
SCHOOL, EZEQUIEL GUTIERREZ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO, B. F. SISK COURTHOUSE
10
11 AKASH SINGH, Case No. 18CECG02478
12 Plaintiff, REPLY TO OPPOSITION OF CENTRAL
UNIFIED SCHOOL DISTRICT,
13 Vv, CENTRAL HIGH SCHOOL, AND
EZEQUIEL GUTIERREZ’S ANTI-SLAPP
14 CENTRAL UNIFIED SCHOOL DISTRICT, SPECIAL MOTION TO STRIKE
CENTRAL HIGH SCHOOL, EZEQUIEL
15 GUTIERREZ, and DOES 1 to 100, inclusive, Date: November 6, 2018
Time: 3:30 p.m.
16 Defendants. Dept.: 502
17 Assigned for All Purposes to:
Hon. Donald Black
18
Action Filed: July 9, 2018
19 Trial Date: None Set
20 Defendants hereby submit the following Reply to AKASH SINGH’s (“Singh”) Opposition
21 to Anti-SLAPP Special Motion to Strike.
22 I
INTRODUCTION
23
If ever there were a case where a public school administrator must be afforded protections
24
to speak freely, it would be this one. A student was dead in the wake of gun violence. Plaintiff's
25
social media post incited additional on-campus violence and caused the very real threat that more
26
violence may result between students of the two schools at issue. Defendants, of course, contacted
27
the corresponding school administrator to investigate further and warn of the threat. In short,
28
12466.000 10 05233659.000,
REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE
though Plaintiff's Opposition contains various declarations, he has failed to show that this case
falls outside of the protections within the Anti-SLAPP Statute, and further has failed to show that
he has a probability of succeeding on the merits, particularly where his burden to defeat
Defendants’ affirmative defenses requires him to overcome a clear and convincing standard.
Accordingly, as will be thoroughly explained within, this Motion must be granted without leave to
amend.
I.
LAW AND ARGUMENT
A. Defendants Have Met Their Burden to Show the Complained of Speech That Gives
Rises to Each Cause of Action is Protected.
10 1 The Statements Were Made As Part of An Official Investigation.
11 Plaintiff claims Vice Principal GUTIERREZ’s statements were not made as part of an
12 official proceeding because they were made to a private school principal after Plaintiff had
13 explained the context of his post. The argument that the statements were not part of an official
14 proceeding is based on the declarations from Plaintiff and his mother. Assuming the Court
15 considers them, despite their being rife with objectionable statements, the declarations do not
16 contradict Vice Principal GUTIERREZ’s statements or change their legal significance.
17 Despite lacking personal knowledge to support it, Plaintiff claims the police were not
18 involved (Singh Decl., ]] 12) and there was no pending investigation. However, unlike Vice
19 Principal GUTIERREZ, he has no personal knowledge or foundation to make such statements.
20 Under the Anti-SLAPP Statute, statements made before an official proceeding or in
21 connection with an issue under consideration or review by an official proceeding are considered
22 “acts in further of a person’s right of petition or free speech under the United States or California
23 Constitution in connection with a public issue.” (Code Civ. Proc., § 425.16(b)(1) & (e) [emphasis
24 added].) An investigation made by a school is an official proceeding authorized by law. (See
25 Martin v. Kearney (1975) 51 Cal.App.3d 309, 311; See also Lee v. Fick (2005) 135 Cal.App.4"
26 89, 96-97.) It is also well established that internal investigations constitute an “official proceeding
27 authorized by law” under the Anti-SLAPP Statute. (Hansen v. California Dept. of Corrections
28 and Rehabilitation (2008) 171 Cal.App.4th 1537, 1544.) The same protection for statements and
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conduct made during an official proceeding extends to statements and conduct outside the
proceedings if sufficiently related to matters under consideration by the official body. (See
Maranatha Corrections, LLC y. Department of Corrections & Rehab. (2008) 158 Cal.App.4th
1075, 1085 [emphasis added].) As long as the statements or conduct are made “in connection with
an issue under consideration” in the proceeding, they are protected. (Vergos v. McNeal (2007) 146
Cal.App.4th 1387, 1395; Paul v. Friedman (2002) 95 Cal.App.4th 853, 865.) “The critical
question is the aim of the communication, not the forum in which it takes place.” (Hagberg
vy. CA Federal Bank (2004) 32 Cal.4th 350, 368 [emphasis added].)
Plaintiff relies on Frisk v. Merrihew (1974) 42 Cal.App.3d 319 to stand for the proposition
10 that a defamatory statement made as part of an official proceeding may not necessarily be
11 protected if the statement has no relation to the purpose of the proceeding, and argues that here,
12 this is what has occurred. In Frisk, a public school official berated a community member when he
13 commented during a school board meeting, stating: “Mr. Frisk...you are a weak link in that
14 system; you never know what you are talking about. You aren’t any better a lawyer than you are a
15 teacher. You are incompetent. Somebody has wasted money to hire you to come here. Sit down.
16 You are a rabble-rouser and agitator.” (Id. at p. 322, fn. 1.) The Court in Frisk determined that a
17 jury may have found that such a statement had no bearing on achieving the purpose of the board
18 meeting and was simply a personal, defamatory attack. (/d. at pp. 324-326.) Therefore, instead of
19 issuing a directed verdict, the court should have allowed the jury to determine the issue of
20 privilege. (Zbid.)
21 Tn contrast to the statement made in Frisk, Mr. Gutierrez’s reiteration of Akash’s post to
22 Fresno Christian was: (1) a factual account of what had occurred and (2) made for the purpose of
23 investigating the threat further and warning a fellow school of a potential ongoing threat. The
24 statements can only be interpreted a single way---to be in furtherance of the official purpose.
25 Accordingly, the speech was protected.
26 Moreover, Plaintiff's emphasis on the non-profit status of the Fresno Christian High
27 School is irrelevant to the analysis. As noted in Maranatha, supra, the purpose, not the forum
28 itself is not the focus for the analysis. These statements were made by Vice Principal
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GUTIERREZ, an administrator at a public high school in connection with its investigation.
They were therefore made in connection with an issue under consideration by an official
proceeding.
Finally, Plaintiff's argument that the meeting between himself, his mother and
GUTIERREZ should have ended the investigation is a red-herring. Such an argument is akin to a
suspect in an ongoing bomb-threat telling the police that there is no problem, and the police then
being required to end the investigation. This simply would not, and could not, occur in that
example, or in the instant scenario. Vice Principal GUTIERREZ, as the investigating
administrator on behalf of Central had no personal knowledge that Fresno Christian was not in
10 session,' knew Kayla had been murdered, knew Central students believed Plaintiff's post to be
11 related to Kayla’s murder or an ongoing threat against her brother,” Kobe, and knew those same
12 students had been sent home early for the day. (Gutierrez Decl, | 6.) He had a duty to continue to
13 look into the murder and social media post and further, to warn Fresno Christian that his students
14 may be on their way there. (Gutierrez Decl, 6.) Plaintiff's assurances could do nothing to alter
15 his duties, or the effect the post had on the third party readers, the Central students. Ultimately,
16 Plaintiff's explanation of the reason for his post did not change the impact it had on students at
17 CENTRAL HIGH SCHOOL and how it was perceived by students and the ramifications that
18 could result from such perception.
19 In sum, the overwhelming law and evidence show that Defendants have met their initial
20 burden for purposes of this Motion.
21 2 Vice Principal GUTIERREZ’s Statements Were Made in Connection with a
Public Issue or an Issue of Public Interest.
22
Plaintiff also claims that Mr. Gutierrez’s communication to Fresno Christian was not a
23
matter of public concern because the communication took place after Plaintiff and his mother
24
25
| While Plaintiff submits an unauthenticated web calendar to show Fresno Christian was not in session, this does
26 nothing to prove Gutierrez’s knowledge at the time. His school was still in session so it was reasonable for him to
believe other schools were as well. Given the immediate threat of violence, it would be unreasonable to expect him to
27 research the issue. Notably, the calendar attached as Plaintiff's RJN Ex. A is not the same that is on Fresno Christian
School’s website for May 2017.
28
WHITNEY ? A fact Plaintiff also tellingly admits in his own Declaration at 7.
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explained the context of the post to Mr. Gutierrez. Plaintiff's entire argument hinges on the Court
accepting as true that any doubt or concern about the safety of students should have been entirely
absolved after a single conversation with Plaintiff and his mother regarding his troubling and
disturbing statement made during a period when Mr. Gutierrez was reasonably on heightened alert
in the wake of Kayla’s murder. As described above, Plaintiff's attempt to distance his post from
the timing and context surrounding it must fail.
“The definition of ‘public interest’ within the meaning of the Anti-SLAPP Statute has been
broadly construed to include not only governmental matters, but also private conduct that impacts
a broad segment of society...” (Du Charme v. International Brotherhood of Electrical Workers
10 (2003) 110 Cal.App.4th 107, 115.)
11 There is no question that there is a “powerful public interest in solving homicides and
12 bringing killers to justice.” (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759,
13 766.) It is similarly indisputable that “the governance of a public school system is of the utmost
14 importance to a community” (Ghafur v. Bernstein (2005) 131 Cal.App.4th 1230, 1238), and as a
15 logical and necessary corollary, that “incidents of student violence [are a matter] of public
16 interest.” (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1436.)
17 Plaintiff focuses on his purported reason for the post in support of his argument that Vice
18 Principal GUTIERREZ’s statements were not made in connection with a public issue or an issue
19 of public interest. However, the focus is misplaced. The issue is not whether Plaintiff's ill-advised
20 post falls within the scope of Code of Civil Procedure 425.16, but whether Vice Principal
21 GUTIERRIEZ’s statements do. Vice Principal GUTIERREZ’s statements were made in
22 connection with the death of Kayla Foster and the reasonable interpretation by his students that
23 Plaintiff's post was related to it. His contact with Fresno Christian was part of a murder
24 investigation, public school investigation, and the attempt to prevent more violence amongst
25 children--- an issue that is unquestionably a matter of public interest.
26 There is no denying that the death of Kayla Foster was a matter of public interest given the
27 news coverage about it. Plaintiff's post was reasonably perceived by students as evidence that
28 Plaintiff or his friend Gurman were involved in Kayla’s death and/or were threatening Kobe with
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the same fate which befell Kayla, especially considering the ongoing dispute between Kobe’s
friends and Plaintiff's friends. (Singh Decl., | 7; Gutierrez Decl., 6.) Kayla’s death, the fight, the
post, the early release and Vice Principal GUTIERREZ’s statements to Ms. Deffenbacher were all
connected. It is clear Vice Principal GUTIERREZ’s statements fell well within the scope of the
public interest prong of the statute, especially in light of the principle that the statute and the
question of whether something is an issue of public interest must be construed broadly.
(Hecimovich v. Encinal School Parent Teach Organization (2012) 203 Cal.App.4" 450, 464.) For
this reason, too, Defendants have met their initial burden.
B. Plaintiff Has Failed to Produce Admissible Evidence That Shows He is Likely to
Proceed on the Merits
10
1 Plaintiff Has No Admissible Evidence Defeating the Privileges Protecting
11 Defendant’s Speech.
12
In support of their motion, Defendants explained what Vice Principal GUTIERREZ
13 actually said. This is contrasted with what Plaintiff believed Vice Principal GUTIERREZ said. In
14
support of his Opposition, Plaintiff provides mere conclusory allegations about what Vice
15 Principal GUTIERREZ said. “Mr. Gutierrez told administrators at Fresno Christian things about
16 me that were untrue, slandered my character, and harmed my reputation.” (Singh Decl., { 16.)
17 Unlike Vice Principal GUTIERREZ, Plaintiff provides no evidence as to what was actually said.
18 Vice Principal GUTIERREZ provided an accurate description of the post, how it was
19 perceived by his students, the consequences of that perception, and his opinion of what should be
20 done. (Gutierrez Decl. at 6(h), Ex. B.) Truth is an absolute defense to defamation, and statements
21 of opinion are constitutionally protected and do not constitute defamation. (Smith v. Maldonado
22 (1999) 72 Cal.App.4" 637, 646; McGarry v. University of San Diego (2007) 154 Cal.App.4" 97,
23 112.) So long as the gist is substantially true, the defense is available. (Summit Bank v. Roger
24 (2012) 206 Cal.App.4th 669, 697.)
25 2. Plaintiff Has Failed to Show Malice
26 Plaintiff claims the privileges provided under Civil Code section 47, subdivisions (b) and
27 (c) are not applicable because Vice Principal GUTIERREZ acted with malice when he made the
28 statements. To support this argument, Plaintiff presents irrelevant declarations that lack foundation
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and are based on speculation in an attempt to portray Vice Principal GUTIERREZ as someone
who disliked Indian students. Presumably then, he would not have contacted Fresno Christian
High School had a student of a different race made a post on social media that was believed by
others to be related to the recent murder of a student which incited a fight at CENTRAL HIGH
SCHOOL. In his factually baseless portrayal of Vice Principal GUTIERREZ and his motivation
for contacting Fresno Christian High School, Plaintiff misconstrues the standard for malice in
cases of defamation.
Malice, in the defamation context, is knowledge that the statement was false or reckless
disregard of whether it was false. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747.)
10 Reckless disregard, in turn, means that the publisher “in fact entertained serious doubts as to the
11 truth of his publication.” (Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th 254, 275.) “To prove
12 actual malice, therefore, a plaintiff must ‘demonstrate with clear and convincing evidence that
13 the defendant realized that his statement was false or that he subjectively entertained serious
14 doubts as to the truth of his statement.’” (/bid. Emphasis added.)
15 Til will and malice for defamation purposes are not the same. III will toward the plaintiff,
16 or bad motives, are not elements of the standard for malice (Fletcher v. San Jose Mercury News
17 (1989) 216 Cal.App.3d 172, 186.) For malice to be found in a defamation action, the defendant
18 must come close to willfully blinding itself to the falsity of the utterance. (Brown, supra, 48
19 Cal.3d at p. 747.)
20 Actual malice is judged by a subjective standard. (Khawar, supra, 19 Cal.4th at p. 275.)
21 The evidence must show that the defendant had a high degree of awareness of probable falsity of
22 the statement. (/bid.) “The defendant’s actual belief concerning the truthfulness of the publication
23 is the crucial issue. This test directs attention to the ‘defendant’s attitude toward the truth or falsity
24 of the material published ... [not] the defendant’s attitude toward the plaintiff.’” (Reader’s Digest
25 Assn. v. Superior Court (1984) 37 Cal.3d 244, 257.)
26 To find malice in this case, the Plaintiff must show by clear and convincing proof that Vice
27 Principal GUTIERREZ either knew or had a high degree of awareness of the probably falsity of
28 the statements he made to Ms. Deffenbacher. His feelings toward Plaintiff are irrelevant. The only
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evidence presented about what Vice Principal GUTIERREZ actually said was presented by
Defendants in support of their motion. Vice Principal GUTIERREZ truthfully relayed what
happened on his campus as a result of the post and how he honestly believed that could impact
Fresno Christian High School. Plaintiff has failed to show any malice under any standard, let alone
the clear and convincing standard.
Civil Code section 48.8 applies a similar standard that removes the shield of its immunity
only “upon a showing by clear and convincing evidence that the communication or report was
made with knowledge of its falsity or with reckless disregard for the truth or falsity of the
communication.” Plaintiff claims section 48.8 does not apply because Plaintiff explained his
10 reason for the post and Fresno Christian High School was not in session. By doing so, Plaintiff
11 ignores the impact of the post. There was already ongoing tension between the two groups of
12 students at CENTRAL HIGH SCHOOL. Plaintiff's post provided a spark to these smoldering
13 embers and the resulting fire had already started to burn before Plaintiff explained his post to Vice
14 Principal GUTIERREZ. Vice Principal GUTIERREZ acted reasonably based on the situation he
15 was dealing with at the time and his knowledge of the existing tension between the two groups of
16 students, compounded by the recent violent death of Kayla Foster. There is no evidence that Vice
17 Principal GUTIERREZ knew that Fresno Christian High School was not currently in session.
18 Regardless, the potential threat could still exist when Fresno Christian High School resumed
19 classes. Like the other immunities, Plaintiff will be unable to show that the immunity provided
20 under Civil Code section 48.8 does not apply.
21 Cc Plaintiff Should Be Denied Leave to Amend the Complaint
22 If the Court grants the motion to strike, Plaintiff requests leave to amend the Complaint. It
23 appears the purpose of making this request is to reframe the allegations in the Complaint to allege
24 violations of the Education Code section 4907. However, this case does not involve the
25 unauthorized access to pupil records. Plaintiff was not Defendants’ pupil and, regardless,
26 Defendants’ statement at issue disclosed no records. This case involves an administrator of one
27 school contacting an administrator of a different school about the response to a social media post
28 that had the possibility of affecting both schools. Even assuming Education Code section 4907 is
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applicable, Plaintiff is barred from asserting a violation of that section in his Complaint, because
he did not include any allegations about it in his Government Tort Claim he filed with Defendants.
The act of which Plaintiff complained in his claim was the publishing of false information about
him to third parties, including Fresno Christian High School staff, without using reasonable care to
determine the truth or falsity of those statements. (Government Tort Claim, attached as Exhibit A
to Complaint, {| 9, which is attached as Exhibit 1 to Defendants’ Request for Judicial Notice
“RJN”.) There is nothing in the Claim or Complaint about unauthorized access to Plaintiff's
records.
To make such an allegation in his Complaint, Plaintiff would have to amend his
10 Government Tort Claim. He would barred by the time requirement in Government Code section
11 910.6(a), though, which only permits an amendment within the claim filing period designated in
12 Section 911.2 (six months) or before the public entity takes final action on the claim, whichever is
13 later, if the amendment relates to the same transaction or occurrence which gave rise to the
14 original claim.
15 CENTRAL UNIFIED SCHOOL DISTRICT served Plaintiff with its notice of rejection of
16 his claim on January 12, 2018. (Complaint, | 7, attached as Exhibit 1 to Defendant’s RJN.)
17 Assuming Plaintiff's causes of action accrued on July 11, 2017, when he learned about the
18 statements, he would have had until January 12, 2018, to amend his claim. (/d. at J 9.) That time
19 has long passed.
20 The purpose of California’s Anti-SLAPP Statute is to eliminate “sham or facially
21 meritless” allegations at the pleading stage. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th
22 1068, 1073.) “Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the
23 prima facie showing has been met would completely undermine the statute by providing the
24 pleader a ready escape from section 425.16’s quick dismissal remedy.” (Jbid.) The Simmons
25 court explained,
26 Instead of having to show a probability of success on the merits, the SLAPP
plaintiff would be able to go back to the drawing board with a second opportunity
27 to disguise the vexatious nature of the suit through more artful pleading. This
would trigger a second round of pleadings, a fresh motion to strike, and
28
WHITNEY
inevitably another request for leave to amend. By the time the moving party
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would be able to dig out of this procedural quagmire, the SLAPP plaintiff will
have succeeded in his goal of delay and distraction and running up the costs of
his opponent. Such a plaintiff would accomplish indirectly what could not be
accomplished directly, i.e., depleting the defendant’s energy and draining his or
her resources. This would totally frustrate the Legislature’s objective of
providing a quick and inexpensive method of unmasking and dismissing such
suits. (/d. at pp. 1074-1074.)
Allowing Plaintiff
to amend his Complaint in this case would frustrate the purpose of the
Anti-SLAPP Statute by allowing Plaintiff
to attempt to plead around the deficiencies in his
Complaint. The new facts and theories of liability based on the Education Code would be barred
by the Government Claims Act, just as the cause of action for negligent hiring is.
TIL.
10 CONCLUSION
11 Allowing Plaintiff's Complaint to proceed forward would undermine the purpose of the
122 Anti-SLAPP Statute by chilling the valid exercise of Vice Principal GUTIERREZ’s right of
13 freedom of speech. The ability of high school administrators, like Vice Principal GUTIERREZ,
14 faced with the daily challenge of maintaining the peace and protecting students from violence by
15 making quick decisions based on limited information, would be severely diminished. Based on the
16 foregoing, as well as any arguments that may be raised at the hearing on this matter, Defendants
17 respectfully requests the Court strike Plaintiffs Complaint in its entirety and dismiss it with
18 prejudice. Defendants also reserve the right to bring a duly-noticed Motion for Attorney’s Fees.
19
20 Dated: October 4Q, 2018 WHITNEY, THOMPSON & JEFFCOACH LLP.
,
21
22
By:
ioe
23 Kristi D. Mar: Ss.
F. William Jac
24
Attorneys for Defendants CENTRAL UNIFIED
25 SCHOOL DISTRICT, CENTRAL HIGH SCHOOL,
EZEQUIEL GUTIERREZ
26
2
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PROOF OF SERVICE
Singh y. Central Unified School District, et al.
Case No. 18CECG02478
STATE OF CALIFORNIA, COUNTY OF FRESNO
At the time of service, I was over 18 years of age and not a party to this action. Tam
employed in the County of Fresno, State of California. My business address is 8050 N. Palm
Avenue, Suite 110, Fresno, CA 93711.
On October 30, 2018, I served true copies of the following document(s) described as
REPLY TO OPPOSITION OF CENTRAL UNIFIED SCHOOL DISTRICT, CENTRAL
HIGH SCHOOL, AND EZEQUIEL GUTIERREZ’S ANTI-SLAPP SPECIAL MOTION TO
STRIKE on the interested parties in this action as follows:
Micah K. Nilsson, Esq.
Mark A. Waller, Esq.
10 DOWLING AARON INCORPORATED
5080 California Ave., Ste. 340
11 Bakersfield, CA 93309
munilsson@dowlingaaron.com
12 mwaller@dowlingaaron.com
13
BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx
14 and addressed to the persons at the addresses listed in the Service List. I placed the envelope or
~
package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx
15 or delivered such document(s) to a courier or driver authorized by FedEx to receive documents.
16 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
17
Executed on October 30, 2018, at Fresno, California.
18
(Wong
19
20 Nicole Lee
221
22
23
24
25
26
ay
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Whitney, Thompson & Jeffcoach LLP Kristi D. Marshall, #274625 kmarshall@wtjlaw.com F. William Jackson, #271255 E-FILED wjackson@wtjlaw.com 10/30/2018 11:41 AM 8050 N. Palm Avenue, Suite 110 FRESNO COUNTY SUPERIOR COURT Fresno, California 93711 By: K. Daves, Deputy Telephone: (559) 753-2550 Facsimile: (559) 795-2560 Attomeys for Defendants CENTRAL UNIFIED SCHOOL DISTRICT, CENTRAL HIGH SCHOOL, EZEQUIEL GUTIERREZ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO, B. F. SISK COURTHOUSE 10 11 AKASH SINGH, Case No. 18CECG02478 12 Plaintiff, REPLY TO OPPOSITION OF CENTRAL UNIFIED SCHOOL DISTRICT, 13 Vv, CENTRAL HIGH SCHOOL, AND EZEQUIEL GUTIERREZ’S ANTI-SLAPP 14 CENTRAL UNIFIED SCHOOL DISTRICT, SPECIAL MOTION TO STRIKE CENTRAL HIGH SCHOOL, EZEQUIEL 15 GUTIERREZ, and DOES 1 to 100, inclusive, Date: November 6, 2018 Time: 3:30 p.m. 16 Defendants. Dept.: 502 17 Assigned for All Purposes to: Hon. Donald Black 18 Action Filed: July 9, 2018 19 Trial Date: None Set 20 Defendants hereby submit the following Reply to AKASH SINGH’s (“Singh”) Opposition 21 to Anti-SLAPP Special Motion to Strike. 22 I INTRODUCTION 23 If ever there were a case where a public school administrator must be afforded protections 24 to speak freely, it would be this one. A student was dead in the wake of gun violence. Plaintiff's 25 social media post incited additional on-campus violence and caused the very real threat that more 26 violence may result between students of the two schools at issue. Defendants, of course, contacted 27 the corresponding school administrator to investigate further and warn of the threat. In short, 28 12466.000 10 05233659.000, REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE though Plaintiff's Opposition contains various declarations, he has failed to show that this case falls outside of the protections within the Anti-SLAPP Statute, and further has failed to show that he has a probability of succeeding on the merits, particularly where his burden to defeat Defendants’ affirmative defenses requires him to overcome a clear and convincing standard. Accordingly, as will be thoroughly explained within, this Motion must be granted without leave to amend. I. LAW AND ARGUMENT A. Defendants Have Met Their Burden to Show the Complained of Speech That Gives Rises to Each Cause of Action is Protected. 10 1 The Statements Were Made As Part of An Official Investigation. 11 Plaintiff claims Vice Principal GUTIERREZ’s statements were not made as part of an 12 official proceeding because they were made to a private school principal after Plaintiff had 13 explained the context of his post. The argument that the statements were not part of an official 14 proceeding is based on the declarations from Plaintiff and his mother. Assuming the Court 15 considers them, despite their being rife with objectionable statements, the declarations do not 16 contradict Vice Principal GUTIERREZ’s statements or change their legal significance. 17 Despite lacking personal knowledge to support it, Plaintiff claims the police were not 18 involved (Singh Decl., ]] 12) and there was no pending investigation. However, unlike Vice 19 Principal GUTIERREZ, he has no personal knowledge or foundation to make such statements. 20 Under the Anti-SLAPP Statute, statements made before an official proceeding or in 21 connection with an issue under consideration or review by an official proceeding are considered 22 “acts in further of a person’s right of petition or free speech under the United States or California 23 Constitution in connection with a public issue.” (Code Civ. Proc., § 425.16(b)(1) & (e) [emphasis 24 added].) An investigation made by a school is an official proceeding authorized by law. (See 25 Martin v. Kearney (1975) 51 Cal.App.3d 309, 311; See also Lee v. Fick (2005) 135 Cal.App.4" 26 89, 96-97.) It is also well established that internal investigations constitute an “official proceeding 27 authorized by law” under the Anti-SLAPP Statute. (Hansen v. California Dept. of Corrections 28 and Rehabilitation (2008) 171 Cal.App.4th 1537, 1544.) The same protection for statements and WHITNEY THOMPSON «. EFFCOACH 12466.00010 05233659.000, 2 REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE conduct made during an official proceeding extends to statements and conduct outside the proceedings if sufficiently related to matters under consideration by the official body. (See Maranatha Corrections, LLC y. Department of Corrections & Rehab. (2008) 158 Cal.App.4th 1075, 1085 [emphasis added].) As long as the statements or conduct are made “in connection with an issue under consideration” in the proceeding, they are protected. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1395; Paul v. Friedman (2002) 95 Cal.App.4th 853, 865.) “The critical question is the aim of the communication, not the forum in which it takes place.” (Hagberg vy. CA Federal Bank (2004) 32 Cal.4th 350, 368 [emphasis added].) Plaintiff relies on Frisk v. Merrihew (1974) 42 Cal.App.3d 319 to stand for the proposition 10 that a defamatory statement made as part of an official proceeding may not necessarily be 11 protected if the statement has no relation to the purpose of the proceeding, and argues that here, 12 this is what has occurred. In Frisk, a public school official berated a community member when he 13 commented during a school board meeting, stating: “Mr. Frisk...you are a weak link in that 14 system; you never know what you are talking about. You aren’t any better a lawyer than you are a 15 teacher. You are incompetent. Somebody has wasted money to hire you to come here. Sit down. 16 You are a rabble-rouser and agitator.” (Id. at p. 322, fn. 1.) The Court in Frisk determined that a 17 jury may have found that such a statement had no bearing on achieving the purpose of the board 18 meeting and was simply a personal, defamatory attack. (/d. at pp. 324-326.) Therefore, instead of 19 issuing a directed verdict, the court should have allowed the jury to determine the issue of 20 privilege. (Zbid.) 21 Tn contrast to the statement made in Frisk, Mr. Gutierrez’s reiteration of Akash’s post to 22 Fresno Christian was: (1) a factual account of what had occurred and (2) made for the purpose of 23 investigating the threat further and warning a fellow school of a potential ongoing threat. The 24 statements can only be interpreted a single way---to be in furtherance of the official purpose. 25 Accordingly, the speech was protected. 26 Moreover, Plaintiff's emphasis on the non-profit status of the Fresno Christian High 27 School is irrelevant to the analysis. As noted in Maranatha, supra, the purpose, not the forum 28 itself is not the focus for the analysis. These statements were made by Vice Principal WHITNEY THOMPSON «. EFFCOACH 12466.00010 05233659.000, 3 REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE GUTIERREZ, an administrator at a public high school in connection with its investigation. They were therefore made in connection with an issue under consideration by an official proceeding. Finally, Plaintiff's argument that the meeting between himself, his mother and GUTIERREZ should have ended the investigation is a red-herring. Such an argument is akin to a suspect in an ongoing bomb-threat telling the police that there is no problem, and the police then being required to end the investigation. This simply would not, and could not, occur in that example, or in the instant scenario. Vice Principal GUTIERREZ, as the investigating administrator on behalf of Central had no personal knowledge that Fresno Christian was not in 10 session,' knew Kayla had been murdered, knew Central students believed Plaintiff's post to be 11 related to Kayla’s murder or an ongoing threat against her brother,” Kobe, and knew those same 12 students had been sent home early for the day. (Gutierrez Decl, | 6.) He had a duty to continue to 13 look into the murder and social media post and further, to warn Fresno Christian that his students 14 may be on their way there. (Gutierrez Decl, 6.) Plaintiff's assurances could do nothing to alter 15 his duties, or the effect the post had on the third party readers, the Central students. Ultimately, 16 Plaintiff's explanation of the reason for his post did not change the impact it had on students at 17 CENTRAL HIGH SCHOOL and how it was perceived by students and the ramifications that 18 could result from such perception. 19 In sum, the overwhelming law and evidence show that Defendants have met their initial 20 burden for purposes of this Motion. 21 2 Vice Principal GUTIERREZ’s Statements Were Made in Connection with a Public Issue or an Issue of Public Interest. 22 Plaintiff also claims that Mr. Gutierrez’s communication to Fresno Christian was not a 23 matter of public concern because the communication took place after Plaintiff and his mother 24 25 | While Plaintiff submits an unauthenticated web calendar to show Fresno Christian was not in session, this does 26 nothing to prove Gutierrez’s knowledge at the time. His school was still in session so it was reasonable for him to believe other schools were as well. Given the immediate threat of violence, it would be unreasonable to expect him to 27 research the issue. Notably, the calendar attached as Plaintiff's RJN Ex. A is not the same that is on Fresno Christian School’s website for May 2017. 28 WHITNEY ? A fact Plaintiff also tellingly admits in his own Declaration at 7. THOMPSON «. JEFFCOACH 12466.00010 05233659.000, 4 REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE explained the context of the post to Mr. Gutierrez. Plaintiff's entire argument hinges on the Court accepting as true that any doubt or concern about the safety of students should have been entirely absolved after a single conversation with Plaintiff and his mother regarding his troubling and disturbing statement made during a period when Mr. Gutierrez was reasonably on heightened alert in the wake of Kayla’s murder. As described above, Plaintiff's attempt to distance his post from the timing and context surrounding it must fail. “The definition of ‘public interest’ within the meaning of the Anti-SLAPP Statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society...” (Du Charme v. International Brotherhood of Electrical Workers 10 (2003) 110 Cal.App.4th 107, 115.) 11 There is no question that there is a “powerful public interest in solving homicides and 12 bringing killers to justice.” (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 13 766.) It is similarly indisputable that “the governance of a public school system is of the utmost 14 importance to a community” (Ghafur v. Bernstein (2005) 131 Cal.App.4th 1230, 1238), and as a 15 logical and necessary corollary, that “incidents of student violence [are a matter] of public 16 interest.” (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1436.) 17 Plaintiff focuses on his purported reason for the post in support of his argument that Vice 18 Principal GUTIERREZ’s statements were not made in connection with a public issue or an issue 19 of public interest. However, the focus is misplaced. The issue is not whether Plaintiff's ill-advised 20 post falls within the scope of Code of Civil Procedure 425.16, but whether Vice Principal 21 GUTIERRIEZ’s statements do. Vice Principal GUTIERREZ’s statements were made in 22 connection with the death of Kayla Foster and the reasonable interpretation by his students that 23 Plaintiff's post was related to it. His contact with Fresno Christian was part of a murder 24 investigation, public school investigation, and the attempt to prevent more violence amongst 25 children--- an issue that is unquestionably a matter of public interest. 26 There is no denying that the death of Kayla Foster was a matter of public interest given the 27 news coverage about it. Plaintiff's post was reasonably perceived by students as evidence that 28 Plaintiff or his friend Gurman were involved in Kayla’s death and/or were threatening Kobe with WHITNEY THOMPSON «. EFFCOACH 12466.00010 05233659.000, 5 REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE the same fate which befell Kayla, especially considering the ongoing dispute between Kobe’s friends and Plaintiff's friends. (Singh Decl., | 7; Gutierrez Decl., 6.) Kayla’s death, the fight, the post, the early release and Vice Principal GUTIERREZ’s statements to Ms. Deffenbacher were all connected. It is clear Vice Principal GUTIERREZ’s statements fell well within the scope of the public interest prong of the statute, especially in light of the principle that the statute and the question of whether something is an issue of public interest must be construed broadly. (Hecimovich v. Encinal School Parent Teach Organization (2012) 203 Cal.App.4" 450, 464.) For this reason, too, Defendants have met their initial burden. B. Plaintiff Has Failed to Produce Admissible Evidence That Shows He is Likely to Proceed on the Merits 10 1 Plaintiff Has No Admissible Evidence Defeating the Privileges Protecting 11 Defendant’s Speech. 12 In support of their motion, Defendants explained what Vice Principal GUTIERREZ 13 actually said. This is contrasted with what Plaintiff believed Vice Principal GUTIERREZ said. In 14 support of his Opposition, Plaintiff provides mere conclusory allegations about what Vice 15 Principal GUTIERREZ said. “Mr. Gutierrez told administrators at Fresno Christian things about 16 me that were untrue, slandered my character, and harmed my reputation.” (Singh Decl., { 16.) 17 Unlike Vice Principal GUTIERREZ, Plaintiff provides no evidence as to what was actually said. 18 Vice Principal GUTIERREZ provided an accurate description of the post, how it was 19 perceived by his students, the consequences of that perception, and his opinion of what should be 20 done. (Gutierrez Decl. at 6(h), Ex. B.) Truth is an absolute defense to defamation, and statements 21 of opinion are constitutionally protected and do not constitute defamation. (Smith v. Maldonado 22 (1999) 72 Cal.App.4" 637, 646; McGarry v. University of San Diego (2007) 154 Cal.App.4" 97, 23 112.) So long as the gist is substantially true, the defense is available. (Summit Bank v. Roger 24 (2012) 206 Cal.App.4th 669, 697.) 25 2. Plaintiff Has Failed to Show Malice 26 Plaintiff claims the privileges provided under Civil Code section 47, subdivisions (b) and 27 (c) are not applicable because Vice Principal GUTIERREZ acted with malice when he made the 28 statements. To support this argument, Plaintiff presents irrelevant declarations that lack foundation WHITNEY THOMPSON «. JEFFCOACH 12466.00010 05233659.000, 6 REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE and are based on speculation in an attempt to portray Vice Principal GUTIERREZ as someone who disliked Indian students. Presumably then, he would not have contacted Fresno Christian High School had a student of a different race made a post on social media that was believed by others to be related to the recent murder of a student which incited a fight at CENTRAL HIGH SCHOOL. In his factually baseless portrayal of Vice Principal GUTIERREZ and his motivation for contacting Fresno Christian High School, Plaintiff misconstrues the standard for malice in cases of defamation. Malice, in the defamation context, is knowledge that the statement was false or reckless disregard of whether it was false. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747.) 10 Reckless disregard, in turn, means that the publisher “in fact entertained serious doubts as to the 11 truth of his publication.” (Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th 254, 275.) “To prove 12 actual malice, therefore, a plaintiff must ‘demonstrate with clear and convincing evidence that 13 the defendant realized that his statement was false or that he subjectively entertained serious 14 doubts as to the truth of his statement.’” (/bid. Emphasis added.) 15 Til will and malice for defamation purposes are not the same. III will toward the plaintiff, 16 or bad motives, are not elements of the standard for malice (Fletcher v. San Jose Mercury News 17 (1989) 216 Cal.App.3d 172, 186.) For malice to be found in a defamation action, the defendant 18 must come close to willfully blinding itself to the falsity of the utterance. (Brown, supra, 48 19 Cal.3d at p. 747.) 20 Actual malice is judged by a subjective standard. (Khawar, supra, 19 Cal.4th at p. 275.) 21 The evidence must show that the defendant had a high degree of awareness of probable falsity of 22 the statement. (/bid.) “The defendant’s actual belief concerning the truthfulness of the publication 23 is the crucial issue. This test directs attention to the ‘defendant’s attitude toward the truth or falsity 24 of the material published ... [not] the defendant’s attitude toward the plaintiff.’” (Reader’s Digest 25 Assn. v. Superior Court (1984) 37 Cal.3d 244, 257.) 26 To find malice in this case, the Plaintiff must show by clear and convincing proof that Vice 27 Principal GUTIERREZ either knew or had a high degree of awareness of the probably falsity of 28 the statements he made to Ms. Deffenbacher. His feelings toward Plaintiff are irrelevant. The only WHITNEY THOMPSON «. 7 JEFFCOACH 12466.00010 05233659.000, REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE evidence presented about what Vice Principal GUTIERREZ actually said was presented by Defendants in support of their motion. Vice Principal GUTIERREZ truthfully relayed what happened on his campus as a result of the post and how he honestly believed that could impact Fresno Christian High School. Plaintiff has failed to show any malice under any standard, let alone the clear and convincing standard. Civil Code section 48.8 applies a similar standard that removes the shield of its immunity only “upon a showing by clear and convincing evidence that the communication or report was made with knowledge of its falsity or with reckless disregard for the truth or falsity of the communication.” Plaintiff claims section 48.8 does not apply because Plaintiff explained his 10 reason for the post and Fresno Christian High School was not in session. By doing so, Plaintiff 11 ignores the impact of the post. There was already ongoing tension between the two groups of 12 students at CENTRAL HIGH SCHOOL. Plaintiff's post provided a spark to these smoldering 13 embers and the resulting fire had already started to burn before Plaintiff explained his post to Vice 14 Principal GUTIERREZ. Vice Principal GUTIERREZ acted reasonably based on the situation he 15 was dealing with at the time and his knowledge of the existing tension between the two groups of 16 students, compounded by the recent violent death of Kayla Foster. There is no evidence that Vice 17 Principal GUTIERREZ knew that Fresno Christian High School was not currently in session. 18 Regardless, the potential threat could still exist when Fresno Christian High School resumed 19 classes. Like the other immunities, Plaintiff will be unable to show that the immunity provided 20 under Civil Code section 48.8 does not apply. 21 Cc Plaintiff Should Be Denied Leave to Amend the Complaint 22 If the Court grants the motion to strike, Plaintiff requests leave to amend the Complaint. It 23 appears the purpose of making this request is to reframe the allegations in the Complaint to allege 24 violations of the Education Code section 4907. However, this case does not involve the 25 unauthorized access to pupil records. Plaintiff was not Defendants’ pupil and, regardless, 26 Defendants’ statement at issue disclosed no records. This case involves an administrator of one 27 school contacting an administrator of a different school about the response to a social media post 28 that had the possibility of affecting both schools. Even assuming Education Code section 4907 is WHITNEY THOMPSON «. EFFCOACH 12466.00010 05233659.000, 8 REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE applicable, Plaintiff is barred from asserting a violation of that section in his Complaint, because he did not include any allegations about it in his Government Tort Claim he filed with Defendants. The act of which Plaintiff complained in his claim was the publishing of false information about him to third parties, including Fresno Christian High School staff, without using reasonable care to determine the truth or falsity of those statements. (Government Tort Claim, attached as Exhibit A to Complaint, {| 9, which is attached as Exhibit 1 to Defendants’ Request for Judicial Notice “RJN”.) There is nothing in the Claim or Complaint about unauthorized access to Plaintiff's records. To make such an allegation in his Complaint, Plaintiff would have to amend his 10 Government Tort Claim. He would barred by the time requirement in Government Code section 11 910.6(a), though, which only permits an amendment within the claim filing period designated in 12 Section 911.2 (six months) or before the public entity takes final action on the claim, whichever is 13 later, if the amendment relates to the same transaction or occurrence which gave rise to the 14 original claim. 15 CENTRAL UNIFIED SCHOOL DISTRICT served Plaintiff with its notice of rejection of 16 his claim on January 12, 2018. (Complaint, | 7, attached as Exhibit 1 to Defendant’s RJN.) 17 Assuming Plaintiff's causes of action accrued on July 11, 2017, when he learned about the 18 statements, he would have had until January 12, 2018, to amend his claim. (/d. at J 9.) That time 19 has long passed. 20 The purpose of California’s Anti-SLAPP Statute is to eliminate “sham or facially 21 meritless” allegations at the pleading stage. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 22 1068, 1073.) “Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the 23 prima facie showing has been met would completely undermine the statute by providing the 24 pleader a ready escape from section 425.16’s quick dismissal remedy.” (Jbid.) The Simmons 25 court explained, 26 Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity 27 to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and 28 WHITNEY inevitably another request for leave to amend. By the time the moving party THOMPSON «. EFFCOACH 12466.00010 05233659.000, 9 REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE would be able to dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent. Such a plaintiff would accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her resources. This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits. (/d. at pp. 1074-1074.) Allowing Plaintiff to amend his Complaint in this case would frustrate the purpose of the Anti-SLAPP Statute by allowing Plaintiff to attempt to plead around the deficiencies in his Complaint. The new facts and theories of liability based on the Education Code would be barred by the Government Claims Act, just as the cause of action for negligent hiring is. TIL. 10 CONCLUSION 11 Allowing Plaintiff's Complaint to proceed forward would undermine the purpose of the 122 Anti-SLAPP Statute by chilling the valid exercise of Vice Principal GUTIERREZ’s right of 13 freedom of speech. The ability of high school administrators, like Vice Principal GUTIERREZ, 14 faced with the daily challenge of maintaining the peace and protecting students from violence by 15 making quick decisions based on limited information, would be severely diminished. Based on the 16 foregoing, as well as any arguments that may be raised at the hearing on this matter, Defendants 17 respectfully requests the Court strike Plaintiffs Complaint in its entirety and dismiss it with 18 prejudice. Defendants also reserve the right to bring a duly-noticed Motion for Attorney’s Fees. 19 20 Dated: October 4Q, 2018 WHITNEY, THOMPSON & JEFFCOACH LLP. , 21 22 By: ioe 23 Kristi D. Mar: Ss. F. William Jac 24 Attorneys for Defendants CENTRAL UNIFIED 25 SCHOOL DISTRICT, CENTRAL HIGH SCHOOL, EZEQUIEL GUTIERREZ 26 2 28 12466.00010 05233659.000 10 REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE PROOF OF SERVICE Singh y. Central Unified School District, et al. Case No. 18CECG02478 STATE OF CALIFORNIA, COUNTY OF FRESNO At the time of service, I was over 18 years of age and not a party to this action. Tam employed in the County of Fresno, State of California. My business address is 8050 N. Palm Avenue, Suite 110, Fresno, CA 93711. On October 30, 2018, I served true copies of the following document(s) described as REPLY TO OPPOSITION OF CENTRAL UNIFIED SCHOOL DISTRICT, CENTRAL HIGH SCHOOL, AND EZEQUIEL GUTIERREZ’S ANTI-SLAPP SPECIAL MOTION TO STRIKE on the interested parties in this action as follows: Micah K. Nilsson, Esq. Mark A. Waller, Esq. 10 DOWLING AARON INCORPORATED 5080 California Ave., Ste. 340 11 Bakersfield, CA 93309 munilsson@dowlingaaron.com 12 mwaller@dowlingaaron.com 13 BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx 14 and addressed to the persons at the addresses listed in the Service List. I placed the envelope or ~ package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx 15 or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. 16 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 17 Executed on October 30, 2018, at Fresno, California. 18 (Wong 19 20 Nicole Lee 221 22 23 24 25 26 ay 28 12466.00010 05233659.000 ul REPLY TO OPPOSITION TO ANTI-SLAPP SPECIAL MOTION TO STRIKE