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Timothy P. Murphy, State Bar No. 120920 GC. §6103
VilmaA. Lopez, State Bar No. 335453
EDRINGTON, SCHIRMER & MURPHY
2300 Contra Costa Boulevard, Suite 450
Pleasant Hill, CA 94523-3936
Telephone: (925) 827-3300
Facsimile: (925) 827-3320
Attomeys for Defendant
NAPA COUNTY OFFICE OF EDUCATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF NAPA
Case No.: 19CV000733
10 CHARLES BERRY
REQUEST FOR JUDICIAL NOTICE IN
11 Plaintiffs SUPPORT OF DEFENDANT'S MOTION
FOR ATTORNEYS’ FEES
12 Vv.
13 POPE VALLY UNION ELEMENTARY Date: May 22, 2024
5
Dv SCHOOL; NAPA COUNTY OFFICE OF Time: 8:30am.
a8 14 EDUCATION: and DOES 1 through 10, Dept.A
inclusive
15 Complaint Filed: May 15, 2019
ZS Defendants. Remittitur Filed: January 29, 2024
16
aZo& TAC Filed:
Trial Date:
February 14, 2022
None
60 17
ge
18 Pursuantto Evidence Code §451, 452, Defendant NAPA COUNTY OFFICE OF
19 EDUCATION (“Defendant”) hereby requests that this Court take Judicial Notice of the
20 following documents in support of Defendant’ s Motion for Attomey’ s Fees:
21 1 Minute Order in Napa County Superior Court for Case No. 19CV000733 dated
May 12, 2022. A true and correct
copy of the minute
order is attached
as Exhibit A.
23 2. Final Decision in the Court of Appeal of the State of Califomia, First Appellate
24 District, Division Three for Case No. A165592 dated October 10, 2023. A true and correct copy
25 is attached
as Exhibit B.
26 3. Declaration of Jordan C. Meyerin Support of Napa County Office of Education’ s
27 Special Motion to Strike to Third Amended Complaint dated April 8, 2022. A true and correct
copyis attached
as Exhibit C.
1
Request for Judicial Notice in Support of Defendant’s Motion for Attomeys’ Fees
Evidence Code section 452(d) provides that judicial notice may be taken of records of
any court of this state. Evidence Code section 453 provides that “(t)he trial court shall take
judicial notice
of any matter specified in Section 452 if a party requests it and: (a) Gives each
adverse party sufficient notice of the request, through
the pleadings or otherwise, to enable such
adverse party to prepare to meet the request; and (b) Fumishes
the court with sufficient
information
to enable it to take judicial notice of the matter.”
The attached tentative nuling, final decision, and declaration of Jordan C. Meyer are
records of the Superior Court of the State of Califomia, Contra Costa County, and are therefore
judicially noticeable under Evid. Code §452(d). They are relevant to this action as Defendant Napa.
10 County Office of Education relied on the tentative ruling, final decision, and declaration in
11 calculating its attomeys’ fees in filing the anti-SLAPP motion.
12
5
13 DATED: Apmil 10, 2024 EDRINGTON, SCHIRMER & MURPHY LLP
Dv
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a8
15
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16
By
aZo& Timothy
Vilma.
P’Munphy, Esq.
60 17 pez, Esq.
ge Attomeys for Defe
18 NAPA COUNTY OF#ICE OF EDUCATION
19
20
21
23
24
25
26
27
2.
Request for Judicial Notice in Support of Defendant’s Motion for Attomeys’ Fees
EXHIBIT A
ai oF a
Superior Court of California
County of Napa
Minutes
Case #: 19CV000733 Charles J Berry vs Pope Valley Elementary Unified School District et al
Hearing Date: 05/12/2022 Hearing Time: 8:30 AM
Judicial Officer: Scott R.L. Young Clerk: J Chapman
Court Reporter: No Court Reporter Interpreter:
Courtroom: Courtroom B
Parties Present:
Berry, Charles J Plaintiff
Johnson, Jimmie Attorney via ZOOM
Meyer, Jordan Attorney via ZOOM
NATURE OF PROCEEDINGS
The matter comes on calendar regularly this date for a Motion to Strike.
HEARING
The Court has received, read and considered Plaintiff's deciaration filed today's date.
The Court grants request of the Plaintiff and hears oral arguments of Counsel.
After comments, the Court orders this matter taken under submission for consideration and ruling.
Outside the presence of counsel, the Court orders the following tentative ruling shall be adopted as modified by the
Court and incorporated into the minutes of the Court, making it the order of the Court:
[1] DEFENDANT POPE VALLEY S SPECIAL MOTION TO STRIKE
The motion is GRANTED. Plaintiff Charles J. Berry s third amended complaint (TAC) as against Defendant Pope
Vailey Union Elementary Schoo! District (District or Defendant) is ordered stricken in its entirety. Defendant s request
for attorneys fees is GRANTED. Plaintiff is ordered to pay to Defendant, care of its attorneys, sanctions in the
amount of $8,507.00 no later than 20 days after notice of entry of this order.
|. PROCEDURAL MATTERS
Defendant moves, pursuant to Code of Civil Procedure section 425.16, to strike the TAC and for an award of
attorney fees for costs incurred in bringing this motion. The motion is brought on the grounds that each of the claims
asserted against the District arise out of written and oral communications protected under Code of Civil Procedure
section 425.16, subdivision (e), and because Plaintiff cannot establish a probability of prevailing on any of the claims.
Defendant s request for judicial notice is GRANTED, but not for the truth of the matters asserted therein. (Evid. Code,
452, subd. (d); Steed v. Dept of Consumer Affairs (2012) 204 Cal.App.4th 112, 121, 124; Day v. Sharp (1975) 50
Cal.App.3d 904, 914.)
Defendant s 16-page memorandum in support of its motion exceeds the maximum page limit. (See Rules of Court,
rule 3.1113(d) [ no opening or responding memorandum may exceed 15 pages ].) Plaintiff s opposition filed on May
4, 2022 was not timely filed. (See Code Civ. Proc., 1005, subd. (b) [ All papers opposing a motion . . . shall be filed
with the court and a copy served on each party at least nine court days. ].) While the Court is permitted to disregard
memoranda that exceed the page limit or that are filed late, the Court exercises its discretion to consider the
excessive memorandum and late-filed papers in support of Plaintiff s opposition. (See Rules of Court, rules 3.1113,
subd. (g) and 3.1300, subd. (d).)
Finally, the Court notes that the Opinion of the Court of Appeal dated September 16, 2021 is ambiguous with respect
to whether it allows Plaintiff to file a motion for leave to amend his complaint to add new causes of action, or whether
it bypasses the motion for leave procedure and simply allows Plaintiff to file an amended complaint with new causes
of action, as Plaintiff has done. (Opinion dated 9/16/21, Court of Appeal, First Appellate District, Division Three, Case
No. A160256 (Opinion), at 2 [ We also hold that the trial court abused its discretion by refusing to give Berry the
opportunity to file a motion to amend his complaint to add new causes of action. ], 18 [ Accordingly, it was an abuse
of discretion to deny Berry the opportunity to file a motion for leave to amend. J.) It appears the Court of Appeal
intended its ruling to allow Plaintiff to file a motion for leave to amend, as it expressly contemplated that respondents
may still oppose any motion for leave to amend filed by Berry. (Opinion, at 18, n.6; but see id. at 18 [ We also
reverse the judgment to give Berry the opportunity to amend his complaint to add new causes of action. ].) However,
Defendant does not object to Plaintiff s filing of his TAC without moving for leave to amend, and therefore, any
contention that the TAC was not properly filed is deemed waived.
The subject matter of Plaintiff s evidentiary objections and inferences that Plaintiff requests the Courtto make from
the Burkhart declaration are not material to the court s disposition of the motion, and on those grounds, are MOOT.
Plaintiff s objections to the declaration of Kathleen Darmagnac are DENIED on the ground that the Court has the
discretion to make an award of attorney s fees based on an attorney s declaration without requiring the production of
billing records, invoices, or detailed time records. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487-88.)
Il, LEGAL ANALYSIS
A. Legal Standard
A defendant may bring a special motion to strike any cause of action arising from any act of that person in
furtherance of the person s right of petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue. (Code Civ. Proc., 425.16, subd. (b)(1).) This code section is
commonly known as the anti-SLAPP statute.
When ruling on an anti-SLAPP motion, the trial court employs a two-step process. (Wilson v. Cable News Network,
Inc. (2019) 7 Cal.5th 871, 884.) Initially, the moving defendant bears the initial burden of establishing that the
challenged allegations or claims aris[e] from protected activity in which the defendant has engaged. [Citation.] If the
defendant carries its burden, the plaintiff must then demonstrate its claims have at least minimal merit. [Citation.] If
the plaintiff fails to meet that burden, the court will strike the claim. (Ibid.) In making its determination, the trial court
considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense
is based. (Code Civ. Proc., 425.16, subd. (b)(2).)
{ All future references are to the Code of Civil Procedure unless otherwise specified.}
B. The First Prong: Protected Activity
At the first step of the analysis, the defendant must make two related showings. Comparing its statements and
conduct against the statute, it must demonstrate activity qualifying for protection. [Citation.] And comparing that
protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a
plaintiff s claims. [Citations.] At this stage, the question is only whether a defendant has made out a prima facie case
that activity underlying a plaintiff s claims is statutorily protected [Citations], not whether it has shown its acts are
ultimately lawful. (Wilson, supra, 7 Cal.Sth at 887-88.) If conduct that supplies a necessary element of a claim is
protected, the defendant s burden at the first step of the anti-SLAPP analysis has been carried. (Id. at 892.)
1. All Causes of Action Except the Seventh Cause of Action
Defendant argues that all of Plaintiff s causes of action against it with the exception of the Seventh Cause of Action
for Abuse of Process are based on the allegedly wrongful conduct of Superintendent Burkhart (Burkhart). (Support
Memo., at 13:1-4.) Specifically, Plaintiff alleges that Burkhart injured Plaintiff through: (1) speaking with the students
in class as part of his investigation into Plaintiff s misconduct (TAC, at 25); (2) sending the two letters to the NCOE
and the Commission on Teacher Credentialing (CRC) (TAC, 14); and (3) making statements to law enforcement
that resulting in a criminal investigation (TAC, 18). (Support Memo., at 13:4-9.)
Plaintiff does not dispute that its claims against the District in the TAC, other than the Seventh Cause of Action, arise
from these three categories of conduct. (Opposition, at 3:5-10.)
The Court cannot disagree. It finds that the First Cause of Action for Malicious Prosecution is based on Burkhart
writing his letter to the CTC and institut[ing] a criminal investigation against plaintiff. (TAC, at 25.) The Second
Cause of Action for Defamation and Eighth Cause of Action for Undue influence arises from Burkhart s
communications with the students. (TAC, at 25-27.) The Third Cause of Action vaguely asserts that additional
defamatory communications were made. (TAC, at 26.) However, reviewing the TAC as a whole, no other defamatory
communications are alleged other than the three categories identified in Defendant s motion. Plaintiff s Fourth Cause
of Action for Retaliation is based on Burkhart s statements to law enforcement. (TAC, 18.) Plaintiff s Fifth and Sixth
causes of action arise from allegations that Defendant conducted its investigation without any meaningful
procedures whatsoever and denied him the procedures to which he was entitled as a matter of policy because he
is male. (TAC, at 26, 7(S)-(t), 13, 15, 16, 18-19, 22, 26-28.) In essence, these causes of action assert that the
allegations made in the letters, to law enforcement, and while speaking with the students were improper because the
investigation was inadequate.
Plaintiff argues that the three categories of conduct are not protected activity under Section 425.16 because the
conduct is not of public interest, was not made in an official proceeding authorized by law, and a public employee
acting pursuant to their official duties is not protected for First Amendment purposes. (Opposition, at 3:11-6:4.)
The Court considers each of the categories separately below.
i, Speaking with the Students
The allegations in the TAC regarding student communication involve Burkhart purportedly encouraging, repeating,
and soliciting from the students false and defamatory accusations against Plaintiff. (See TAC, 7(d), (0), 14, at 25,
27.) These communications allegedly occurred on May 8, 2018 and comprised the information in Burkhart s two
letters dated May 9, 2018 to the NCOE and the California Commission on Teacher Credentialing (CTC). (TAC, 14.)
Section 425.16, subdivision (e)(1) and (2), protects any written or oral statement or writing made before a(n]. . .
Official proceeding authorized by law and any written or oral statement or writing made in connection with an issue
under consideration or review by a[n].. . official proceeding authorized by law. (Code Civ. Proc., 425.16, subd.
(e)(1), (2).)
[I]n general, an investigation into a public employee s conduct is an official proceeding. (Verceles v. Los Angeles
Unified School Dist. (2021) 63 Cal.App.5th 776, 787.) Notably, Subdivision (e)(1) and (2) of section 425.16 does not
require the defendant to show a public issue or issue of public interest. (Vergos v. McNeal (2007) 146 Cal.App.4th
1387, 1395; Laker v. Board of Trustees of Calif. State Univ. (2019) 32 Cal.App.5th 745, 764 [ Investigations
necessarily involve petitions and speech. J.)
These student communications were made before and/or in connection with the review of a public employee s (here,
Plaintiff s) conduct. Thus, the authorities support that this category properly constitutes protected activity under
Section 425.16, subdivision (e)(1) and (2). (Code Civ. Proc., 425.16, subd. (e)(1), (2).)
ii. Sending the Two Letters
The two letters at issue are those sent by Burkhart dated May 9, 2018 to the NCOE and the CTC allegedly reporting
a mixture of false allegations, partially true (but misleading through his omission or elaboration) allegations, and false
innuendo .. . composed for the purpose of falsely portraying plaintiff in a negative light, causing psychological
anguish, and ending his teaching career. (TAC, 14.
Protected activity under the antiSLAPP statute includes any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of
public interest. (Code Civ. Proc., 425.16, subd. (e)(4).) Authority supports that communications reporting/discussing
a teacher s wrongdoing and misconduct fall within the protections under this Subdivision of the anti-SLAPP statute.
(See Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1176-77 [ [T]here is little question the letter [describing a teacher
s misconduct] implicates issues of public interest [under Section 425.16, subd. (e)(4)], including providing
schoolchildren with an appropriate education and protecting them and school employees from abuse, bullying, and
harassment. ] [citing cases].)
Plaintiff argues in opposition that the letters were deficient and not authorized by law. In order for speech to be illegal
as a matter of law, the defendant must concede the point, or the evidence conclusively demonstrate it, for a claim of
illegality to defeat an anti-SLAPP motion at the first step. (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424.)
Moreover, illegal means criminal rather than merely violation of a statute or common law standard. (Mendoza v.
ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.) Plaintiff provides no evidence, and
there is nothing before the Court which suggests, that the letters are illegal as a matter of law. That Burkhart
allegedly used classroom time or was not authorized to send the letter is not criminal conduct, although Plaintiff
argues it violated statutory law.
Thus, this category of conduct is protected activity under Section 425.16, subdivision (@)(4). (Code Civ. Proc.,
425.16, subd. (e)(4).)
iii. Making Statements to Law Enforcement
Instituting a criminal investigation against Plaintiff by making a report to law enforcement is protected activity under
Section 425.16, subdivision (e)(2). (See Schaffer v. City & County of San Francisco (2008) 168 Cal.App.4th 992,
999, citing Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [communications with district attorney and police and
attempts to press charges were communications seeking official investigations into perceived wrongdoing and thus
protected by 425.16].) Even where a plaintiff was never formally charged with misconduct or a crime,
communications preparatory to or in anticipation of the bringing of an official proceeding are within the protection of
section 425.16. (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544, citing
Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)
Thus, this category of conduct is protected activity under Section 425.16, subdivision (e) (2). (Code Civ. Proc.,
425.16, subd. (e)(2).)
iv. Overall Investigation
Plaintiff s causes of action alleging the entire investigation was deficient are also covered by the anti-SLAPP statute.
Where, as here, an investigation protected under Section 425.16 is the wrong complained of that supplies a key
element of a cause of action, a defendant s initial burden is satisfied. (Jeffra v. California State Lottery (2019) 39
Cal.App.Sth 471, 482.) As discussed above, Burkhart s investigation into Plaintiff s misconduct speaking with the
students, sending letters to NCOE, and making claims to law enforcement is protected under Section 425.16,
subdivision (@)(1), (2), and (4).
Because the parties do not dispute that all of Plaintiff s causes of action, with the exception of the Seventh Cause of
Action, arise from the aforementioned categories of conduct, and because the categories of conduct constitute
protected activity, Defendant has met its burden of showing the First, Second, Third, Fourth, Fifth, Sixth, and Eighth
Causes of Action arise from protected activity.
2. Seventh Cause of Action
Defendant contends that the Seventh Cause of Action is based on the allegation that [t]he attorneys of both
defendant have abused the legal process as they made claims (in the present matter) known to them to be false, and
filed documents known to them to contain false statements. (TAC, at 27.)
The anti-SLAPP statute protects all petition-related activity before a governmental body whether or not the
statements involve a public issue: [Alli that matters is that the First Amendment activity take place in an official
proceeding or be made in connection with an issue being reviewed by an official proceeding. (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116.) Pleadings, statements and writings in connection
with civil litigation are covered by the anti-SLAPP statute. A statement or writing is in connection with litigation if it
relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.
(Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.)
Because the alleged statements comprising this cause of action were made in connection with the litigation, this
cause of action implicates protected activity under Section 425.16, subdivision (e)(2). Thus, Defendant has met its
burden of showing this cause of action arises from protected activity.
C. The Second Prong: Probability of Prevailing on the Merits
For the second step, plaintiff must then demonstrate its claims have at least minimal merit. (Park, supra, 2 Cal.5th
at 1061.) [T]he plaintiff s second-step burden is a limited one. The plaintiff need not prove her case to the court
[citation]; the bar sits lower, at a demonstration of minimal merit [citation]. At this stage, [t]he court does not weigh
evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally
sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the
plaintiff s evidence as true, and evaluates the defendant s showing only to determine if it defeats the plaintiff s claim
as a matter of law. (Wilson, supra, 7 Cal.5th at 891.)
1. First Cause of Action Malicious Prosecution
Malicious prosecution consists of the initiation and maintenance of legal proceedings against another with malice and
without probable cause. (Hardy v. Vial (1957) 48 Cal.2d 577, 580.) The proceedings on which the tort is based may
be criminal, civil, or administrative. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.) To establish a
cause of action for the malicious prosecution, a plaintiff must plead and prove that the prior action (1) was
commenced by or at the direction of the defendant; (2) was terminated in favor of plaintiff; (8) was brought without
probable cause; and (4) was initiated with malice. (Bertero v. Nat | Gen. Corp. (1974) 13 Cal.3d 43, 50; Williams v.
Taylor (1982) 129 Cal.App.3d 745, 754.)
Plaintiff s Malicious Prosecution claim is based on Burkhart s letter to the CTC and statements Burkhart allegedly
made to law enforcement, both of which allegedly resulted in no action taken against Plaintiff. (TAC, at 25.) The only
relevant evidence Plaintiff submits in support of this cause of action is his attempt to incorporate the TAC into this
declaration by reference, as if wholly set forth Statements made in the third person are true as if made in the first
person. (Declaration of Charles Berry ( Berry Decl. ), .) Plaintiff expressly excludes from his declaration
allegations made on information and belief. (Berry Decl., 4.) Plaintiff is essentially solely relying on the TAC in
support of the merits of his claims, which is not admissible evidence. (Monster Energy Co. v. Schechter (2019)
Cal.5th 781, 788 [ As to the second step, a plaintiff seeking to demonstrate the merit of the claim may not rely solely
on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. ].)
Even construing the TAC as admissible evidence, the TAC does not provide allegations that Burkhart acted without
probable cause i.e., without a suspicion founded upon circumstances warranting a reasonable man s belief that
grounds exist for i jating proceedings an essential element of a malicious prosecution claim. (Bertero, supra, 13
Cal.3d at 55.) While the TAC alleges malice and that Burkhart communicated false and misleading statements to
the CTC and law enforcement, the TAC acknowledges that Burkhart s communications were initiated by three
students at [the District] falsely accus|ing] plaintiff. (TAC, 14, 18.) Plaintiff s allegations regarding why Burkhart
should have known the accusations were false are made on information and belief, and therefore, not admissible
evidence. (TAC, 14; see Sweetwater Union High School Dist. v. Gilbane Building Co. 6 Cal.Sth 948 [a statement
made only on information and belief is incompetent for lack of personal knowledge].)
To make a prima facie case of a lack of probable cause in response to a special motion to strike, the plaintiff must
submit evidence showing that no reasonable person would have thought the defendant s action against the plaintiff
was tenable in light of the facts the defendant knew when the action was filed. (Nunez v. Pennisi (2015) 241
Cal.App.4th 861, 875-76.) In this context, Defendant submits evidence establishing that Burkhart sent the letterto
CTC [i]n accordance with the law that requires a school district to notify the CTC if they are not using a substitute
teacher and the reason why. (Declaration of Ken J. Burkhart ( Burkhart Decl., 13.) Defendant further submits
evidence that on the advice of [the District s] counsel, Burkhart spoke to a deputy from the Napa County Sheriff s
office about [Plaintiff] after Plaintiff s government claim raised further concerns about student safety. (Id.,_ 14.) Both
of these statements suggest that Burkhart acted with probable cause. (Salma v. Capon (2008) 161 Cal.App.4th 1275,
1289 [the court may consider defendant s declaration in assessing the plaintiff s probability of prevailing on its claim];
Citizens State Bank v. Hoffman (1941) 44 Cal.App.2d 854, 857 [acting on the advice of counsel establishes probable
cause].)
Based on the foregoing, the Court is unable to conclude that Plaintiff has met his burden to show a reasonable
probability of prevailing on this cause of action.
2. Second, Third, Fourth, Seventh, and Eighth Causes of Action
As Defendant contends, Plaintiff s Second and Eighth Causes of Action concern Burkhart s preliminary interviews of
the school children, the Third Cause of Action concerns communications between Burkhart, District employees, and
NCOE regarding the allegations of wrongdoing connected to the investigation of Plaintiff, the Fourth Cause of Action
concern statements Burkhart allegedly made to law enforcement, and the Seventh Cause of Action concerns the
District s legal counsel raising claims against Plaintiff. (Reply at 7:18-8:21.)
Pursuant to Civil Code section 47, subdivision (b), the litigation privilege applies to any communication (1) made in
an official proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the
objectives of the proceeding; and (4) involved litigants or other participants authorized by law. (Lebbos v. State Bar
(1985) 165 Cal.App.3d 656, 668.) The litigation privilege is not limited to statements made during a trial or other
proceedings, but may extend to steps taken prior thereto, or afterwards. (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1057.)
The communications with students, law enforcement, NCOE, and CTC, which make up these causes of action, are
part of official proceedings protected by Civil Code section 47, thus satisfying the first condition. Second, Defendant
s alleged acts were each logically related to the initiation of an investigation by the District, NCOE, CTC, and law
enforcement. Moreover, any communication with an official agency designed to prompt investigation by that agency
is absolutely privileged. (Long v. Pinto (1981) 126 Cal.App.3d 946, 948.) Third, the objectives of an investigation for
possible disciplinary violations were served by Defendant s alleged acts. Finally, it is well settled that absolute
privilege extends in quasi-judicial proceedings to preliminary interviews and conversations with potential witnesses.
(Lebbos, supra, 165 Cal.App.3d at 668, citing Pettitt v. Levy (1972) 28 Cal.App.3d 484, 490-91.) Thus, the
statements at issue involve the relevant parties, including potential witnesses and disciplinary bodies.
These causes of action are therefore barred by the litigation privilege enumerated in Civil Code section 47. The
cases Plaintiff cites in opposition do not support a contrary holding, and Plaintiff provides no evidence in support of
his probability of prevailing on these claims. (See Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 669 [holding that
absolute immunity under Civil Code section 47 applied to defendant s actions in initiating and pursing an
investigation of plaintiff, even on allegedly false grounds and with malicious intent]; Action Apartment Association v.
City of Santa Monica (2007) 41 Cal.4th 1232, 1246 [listing crimes under the Penal Code and Business and
Professions Code to which the litigation privilege does not apply; none of which are at issue in the instant matter].)
Thus, Plaintiff has failed to satisfy his burden of demonstrating a probability of prevailing on his Second, Third,
Fourth, Seventh, and Eighth Causes of Action.
3. Fifth Cause of Action Procedural Due Process
Defendant asserts that Plaintiff was a substitute teacher and an at-will employee. (Educ. Code, 44953.) Substitutes
may be dismissed at any time and without cause and, therefore, have no ground to claim [they were] wrongly
terminated without cause or due process. (Vasquez v. Happy Valley Union School Dist. (2007) 159 Cal.App.4th 986;
Educ. Code, 44953.)
However, even when a public employee occupies an at-will position, terminable without cause ... (and hence...
[has] no due process property right to that position), it is well established that an at-will [public] employee s liberty
interests are deprived when his discharge is accompanied by charges that might seriously damage his or her
standing and associations in the community or impose[] on him a stigma or other disability that foreclose[s] his
freedom to take advantage of other employment opportunities. [Citations.] When such a liberty deprivation occurs,
the employee has a right to a name-clearing hearing. (Kreutzer v. City and County of San Francisco 166
Cal.App.4th 306, 320 [emphasis in original].)
Plaintiff argues that he has a liberty interest for procedural due process because Burkhart made a charge, imposed a
stigma, and barred Plaintiff form working in Napa schools. A similar argument was made in Kreutzer, where the court
held that a teacher s discharge did not violate his liberty interest when no stigmatizing charges were publicly
disseminated, and [plaintiff] was not precluded from obtaining other employment even though the true reason for the
discharge was in fact based on undisclosed stigmatizing reasons. (Id., at 320-21.) Here, Plaintiff s status was
inactivated without any reason being given. The only publicly disseminated communication regarding Plaintiff was by
NCOE placing Plaintiff inactive [e}ffective immediately. (TAC, Exh. L.) The comment that Plaintiff was found not a
good fit was made solely to Plaintiff himself. (TAC, Exh. M.) To the extent Plaintiff contends that the act of being
placed inactive without reason is in and of itself stigmatizing, because potential employers would assume there
were reasons and that reflects adversely on him, that argument has been rejected by several courts. (See Kreutzer,
supra, 166 Cal.App.4th at 321-22 [ [ajn inference drawn from dismissal alone . . . is insufficient to implicate a liberty
interest. ].) In fact, Plaintiff alleges in the TAC that he had a very positive interview with the hiring officer of Yuba
College in 2018, who encouraged plaintiff to apply to teach a fundamental skills class, but Plaintiff chose not to apply
believing that the application would not be successful with the false statements by NCOE and the District. (TAC,
20.)
The above authority makes clear that Plaintiff s Fifth Cause of Action is likely barred as a matter of law as no
property or liberty interests were implicated. Plaintiff supmits no evidence to support the merits of this cause of
action.
As such, Plaintiff has failed to meet his burden of demonstrating a probability of prevailing on the Fifth Cause of
Action.
4. Sixth Cause of Action Discrimination
Defendant argues that Plaintiff cannot prevail on this cause of action because governmental entities (here,
Defendant) are not persons within the meaning of 42 U.S.C. 1983, upon which Plaintiff s Sixth Cause of Action is
brought. (Will v. Mich. Dep t of State Police (1989) 491 U.S. 58, 71 [ [Neither a State nor its officials acting in their
official capacities are persons under 1983. ]; McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th
1207-08 [ [A] state, an entity acting as an arm of the state, or a state official sued in his official capacity may not be
considered a person who may be liable under section 1983. ], citing Kirchmann v. Lake Elsinore Unified School
Dist. (2000) 83 Cal.App.4th 1098, 1115 [Cal. school district as an arm of the state was not subject to liability under
1983 claim]; Belanger v. Madera Unified School Dist. (Sth Cir. 1992) 963 F.2d 248 [former principal s claim that she
was demoted to teacher in violation of 1983 was properly dismissed because Cal. schoo! districts are agents of the
state].)
Plaintiff argues in opposition that 42 U.S.C. 1983 does not concern free speech. However, this appears to be an
argument regarding the first prong of the anti-SLAPP analysis and does not support his burden on the second prong.
With respect to the first prong, as discussed above, the import is whether the activity comprising the cause of action
is protected under the anti-SLAPP statute, and not whether the law on which the cause of action is based pertains to
free speech.
As such, Plaintiff has failed to satisfy his burden of demonstrating a probability of prevailing on his Sixth Cause of
Action.
D. Attorneys Fees
{Al prevailing defendant on a special motion to strike shall be entitled to recover that defendant s attorney s fees and
costs. (Code Civ. Proc., 425.16, subd. (c)(1).) Defendant s special motion to strike is successful. As such,
mandatory sanctions against Plaintiff are warranted. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th
328, 340 [defendants who successfully eliminated trade libel cause of action prevailed although defamation claim
remained in the litigation].)
Defendant requests sanctions in the amount of $11,444.50. Defendant asserts and provides evidence that it has
incurred costs in the amount of $8,507.00, to date, in bringing this motion, and projected that it would incur an
additional $2,350.00 in preparing a reply brief and $587.50 in attending hearing on the matter. (Declaration of
Kathleen Darmagnac, at 2.) The Court finds that the hours spent preparing the motion and the hourly rate are
reasonable. However, the Court does not award sanctions based on estimated future costs.
For the foregoing reasons, Defendant s request for sanctions is GRANTED in part, in the amount of $8,507.00.
Plaintiff s request made at oral argument to offset the sanctions awarded herein by the anticipated amount of
attorneys fees due to Plaintiff on his contemplated motion for attorneys fees following his appeal is DENIED. The
Court does not award anticipated attorneys fees.
{2] DEFENDANT NAPA COUNTY OFFICE OF EDUCATION S SPECIAL MOTION TO STRIKE
The motion is GRANTED in part. Plaintiff Charles J. Berry is ordered to STRIKE his Third, Fifth, Sixth, and Seventh
causes of action, and ail claims and allegations supporting those causes of action in his Third Amended Complaint
(TAC). Plaintiff is further ordered to STRIKE the allegations regarding the refusal to rescind the two emails at issue
discussed infra with respect to his Fourth Cause of Action. To be clear, the only cause of action which is not ordered
Stricken is Plaintiff s Fourth Cause of Action based on allegations of the refusal to reinstate Plaintiff. Plaintiff shall file
an amended complaint consistent with this ruling within 10 days after receipt of notice of entry of this order.
Defendant s request for attorneys fees is GRANTED. Plaintiff is ordered to pay to Defendant, care of its attorneys,
sanctions in the amount of $5,494.50 no later than 20 days after notice of entry of this order.
|. PROCEDURAL MATTERS
Defendant Napa County Office of Education (NCOE or Defendant) moves, pursuant to Code of Civil Procedure
sections 435 and 436 , to strike the TAC. The motion is brought on the grounds that the TAC is based on facts and
claims that arise from protected activity under Code of Civil Procedure section 425.16 and because Plaintiff cannot
demonstrate a probability of prevailing against NCOE on any of the causes of action.
Defendant s request for judicial notice is GRANTED, but not for the truth of the matters asserted therein. (Evid. Code,
452, subd. (d); Steed v. Dept ot Consumer Affairs (2012) 204 Cal.App.4th 112, 121, 124; Day v. Sharp (1975) 50
Cal.App.3d 904, 914.)
Defendant s 18-page memorandum in support of its application exceeds the maximum page limit. (See Rules of
Court, rule 3.1113(d) [no opening or responding memorandum may exceed 15 pages ].) Plaintiff s opposition filed on
May 4, 2022 was not timely filed. (See Code Civ. Proc., 1005, subd. (b) [ All papers opposing a motion. . . shall be
filed with the court and a copy served on each party at least nine court days. ].) While the Court is permitted to
disregard memoranda that exceed the page limit or that are filed late, the Court exercises its discretion to consider
the excessive memorandum and late-filed papers in support of Plaintiff s opposition. (See Rules of Court, rules
3.1113, subd. (g) and 3.1300, subd. (d).)
Finally, the Court notes that the Opinion of the Court of Appeal dated September 16, 2021 is ambiguous with respect
to whether it allows Plaintiff to file a motion for leave to amend his complaint to add new causes of action, or whether
it bypasses the motion for leave procedure and simply allows Plaintiff to file an amended complaint with new causes
of action, as Plaintiff has done. (Opinion dated 9/16/21, Court of Appeal, First Appellate District, Division Three,
Case No. A160256 (Opinion), at 2 [ We also hold that the trial court abused its discretion by refusing to give Berry the
opportunity to file a motion to amend his complaint to add new causes of action. ], 18 [ Accordingly, it was an abuse
of discretion to deny Berry the opportunity to file a motion for leave to amend. ].) It appears the Court of Appeal
intended its ruling to allow Plaintiff to file a motion for leave to amend, as it expressly contemplated that respondents
may still oppose any motion for leave to amend filed by Berry. (Opinion, at 18, n.6; but see id. at 18 [ We also
reverse the judgment to give Berry the opportunity to amend his complaint to add new causes of action. ].) However,
Defendant does not object to Plaintiff s filing of his TAC without moving leave to amend, and therefore, any
contention that the TAC was not properly filed is deemed waived.
Plaintiff s objections to the declaration of Jordan C. Meyer are DENIED on the ground that the Court has the
discretion to make an award of attorney s fees based on an attorney s declaration without requiring the production of
billing records, invoices, or detailed time records. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487-88.)
The inferences that Plaintiff requests the Court to make from the Zikmund and Alexander declaration are not material
to the court s disposition of the motion, and on those grounds, are MOOT.
{ This reference appears to be in error as the remainder of the Defendant s notice and supporting papers cite to the
proper statutory grounds for relief. The Court treats Defendant s supporting papers as properly curing any defect in
the notice. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126.)}
I. LEGAL ANALYSIS
A. Legal Standard
A defendant may bring a special motion to strike any cause of action arising from any act of that person in
furtherance of the person s right of petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue. (Code Civ. Proc., 425.16, subd. (b)(1).) This code section is
commonly known as the anti-SLAPP statute,
When ruling on an anti-SLAPP motion, the trial court employs a two-step process. (Wilson v. Cable News Network,
Inc. (2019) 7 Cal.5th 871, 884.) Initially, the moving defendant bears the initial burden of establishing that the
challenged allegations or claims aris[e] from protected activity in which the defendant has engaged. [Citation.] If the
defendant carries its burden, the plaintiff must then demonstrate its claims have at least minimal merit. [Citation.] If
the plaintiff fails to meet that burden, the court will strike the claim. (Ibid.) In making its determination, the trial court
considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense
is based. ( 425.16, subd. (b)(2).)
B. The First Prong: Protected Activity
At the first step of the analysis, the defendant must make two related showings. Comparing its statements and
conduct against the statute, it must demonstrate activity qualifying for protection. [Citation.] And comparing that
protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a
plaintiff s claims. [Citations.] At this stage, the question is only whether a defendant has made out a prima facie case
that activity underlying a plaintiff s claims is statutorily protected [Citations], not whether it has shown its acts are
ultimately lawful. (Wilson, supra, 7 Cal.5th at 887-88.) If conduct that supplies a necessary element of a claim is
protected, the defendant s burden at the first step of the anti-SLAPP analysis has been carried. (Id. at 892.)
Defendant argues that all of Plaintiff s claims against it with the exception of the Seventh Cause of Action for Abuse
of Process are based on the following conduct: (1) Upon receiving Mr. Burkhart s letter of allegations, Mr. Zikmund
and Ms. Alexander summarily . . ., and with reckless disregard for the truth, created their own falsehoods ; and (2)
sending emails, one to districts within NCOE that was defamatory and a second sent to Plaintiff that was defamatory.
(Support Memo., at 8:1-6.) More specifically, Defendant points out that two statements go to the very heart of Plaintiff
s demand for relief against NCOE: the first, directing districts within NCEO to place Plaintiff inactive on the
substitute teacher call list, and, the second, informing Plaintiff that he was nota good fit. (Support Memo., at 7:13-
17.) Defendant contends that these written statements made in response to the claims made by students are the
basis for all of Plaintiff s claims other than the Seventh Cause of Action for abuse of process. (Support Memo., at
7:25-28,)
1. Third Cause of Action Defamation
Plaintiff s Third Cause of Action is based on additional defamatory communications by the employees of [NCOE].
(TAC, at 26.) Defendant argues that this cause of action necessarily arises from the two emails referenced above, as
no other defamatory statements by NCOE are alleged. Plaintiff objects, contending that the two emails are merely
collateral or incidental to this claim. The Court disagrees, as Plaintiff could not omit reference to those emails and still
have a defamation claim given that no other defamatory statements by NCOE are alleged in the TAC.
Section 425.16, subdivision (e)(1), protects any written or oral statement or writing made in connection with an issue
under consideration or review by a(n] .. . official proceeding authorized by law. (Code Civ. Proc., 425.16, subd.
(e)(2).) Notably, Subdivision (e)(1) of section 425,16 does not require the defendant to showa public issue or issue
of public interest. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1395; Laker v. Board of Trustees of Calif. State
Univ. (2019) 32 Cal.App.Sth 745, 764 [ Investigations necessarily involve petitions and speech. J.)
A communication by a state-entity (here, NCOE) stating that a teacher s status is inactive and that a teacher is not
agood fit as a result of receiving a report from a school district detailing the teacher s alleged misconduct properly
constitutes a written statement made in connection with an issue under consideration or review by an official
proceeding. (Code Civ. Proc., 425.16, subd. (¢)(2).) indeed, as Plaintiff alleges in the TAC, it is NCOE s duty to
evaluate the qualifications of substitute teachers in Napa County. (TAC, 13, 36.) Thus, the authorities support that
the two emails properly constitute protected activity under Section 425.16, subdivision (e){2).
Thus, Defendant has met its burden of establishing that the Third Cause of Action arises from protected activity in
which Defendant has engaged.
2. Fourth Cause of Action Retaliation
Defendant recognizes that Plaintiff s retaliation claim is based on the allegation Plaintiff was not re-activated after
the CTC took no action in response to Mr. Burkhart s letter. (Support Memo., at 8:16-17, citing TAC at 26.) Plaintiff
agrees that the basis of Defendant s alleged liability on his retaliation claim is the NCOE refusal to reinstate plaintiff.
(Opposition, at 5:12-16, 20-23.)
The Court cannot disagree, although it finds that an additional and separate fundamental basis for Plaintiff s
retaliation claim is Defendant s refusal to rescind the two emails discussed above. (See TAC, 7 [ Defendants have
retaliated against plaintiff for his descriptions of their employee lawlessness, by refusing to reinstate plaintiff and
retract falsehoods [emails], although defendants know that after a careful review and consideration given to the
facts by the CTC, the CTC did not reproach plaintiff to the slightest degree. ], 18 [ Although employees at the NCOE
know that the CTC investigation against plaintiff ended without the slightest reproach of plaintiff, they will not retract
their emails, which failure to retract is in retaliation for plaintiff s statements concerning their utter lawlessness. ], 24 [
These failures (by both defendants) to rescind are in retaliation for the descriptions of unlawful and unethical and
educationally clueless behavior by defendants employees, which descriptions appeared in plaintiff s emails, tort
claims and complaints, and other documents filed in Napa Superior Court. ], 25 [ Nothing prevents either defendant
from rescinding injurious statements and documents and policies, excepting a retaliatory posture. )
Both categories of conduct (1) Defendant s refusal to rescind the two emails, and (2) Defendant s decision to not re-
activate Plaintiff s status make up the adverse action that supplies a necessary element of Plaintiff s retaliation
claim. (See Wilson, supra, 7 Cal.5th at 885 [ To prove unlawful retaliation, [plaintiff] must. . . show [defendant]
subjected him to adverse employment actions for impermissible reasons namely, because he exercised rights
guaranteed him by law. J.)
As discussed above, the two emails constitute protected activity. Regardless of whether the allegation is that the
emails were sent in the first place or were not rescinded after the fact, the underlying communication itself was in
co
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Timothy P. Murphy, State Bar No. 120920 GC. §6103 VilmaA. Lopez, State Bar No. 335453 EDRINGTON, SCHIRMER & MURPHY 2300 Contra Costa Boulevard, Suite 450 Pleasant Hill, CA 94523-3936 Telephone: (925) 827-3300 Facsimile: (925) 827-3320 Attomeys for Defendant NAPA COUNTY OFFICE OF EDUCATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF NAPA Case No.: 19CV000733 10 CHARLES BERRY REQUEST FOR JUDICIAL NOTICE IN 11 Plaintiffs SUPPORT OF DEFENDANT'S MOTION FOR ATTORNEYS’ FEES 12 Vv. 13 POPE VALLY UNION ELEMENTARY Date: May 22, 2024 5 Dv SCHOOL; NAPA COUNTY OFFICE OF Time: 8:30am. a8 14 EDUCATION: and DOES 1 through 10, Dept.A inclusive 15 Complaint Filed: May 15, 2019 ZS Defendants. Remittitur Filed: January 29, 2024 16 aZo& TAC Filed: Trial Date: February 14, 2022 None 60 17 ge 18 Pursuantto Evidence Code §451, 452, Defendant NAPA COUNTY OFFICE OF 19 EDUCATION (“Defendant”) hereby requests that this Court take Judicial Notice of the 20 following documents in support of Defendant’ s Motion for Attomey’ s Fees: 21 1 Minute Order in Napa County Superior Court for Case No. 19CV000733 dated May 12, 2022. A true and correct copy of the minute order is attached as Exhibit A. 23 2. Final Decision in the Court of Appeal of the State of Califomia, First Appellate 24 District, Division Three for Case No. A165592 dated October 10, 2023. A true and correct copy 25 is attached as Exhibit B. 26 3. Declaration of Jordan C. Meyerin Support of Napa County Office of Education’ s 27 Special Motion to Strike to Third Amended Complaint dated April 8, 2022. A true and correct copyis attached as Exhibit C. 1 Request for Judicial Notice in Support of Defendant’s Motion for Attomeys’ Fees Evidence Code section 452(d) provides that judicial notice may be taken of records of any court of this state. Evidence Code section 453 provides that “(t)he trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Fumishes the court with sufficient information to enable it to take judicial notice of the matter.” The attached tentative nuling, final decision, and declaration of Jordan C. Meyer are records of the Superior Court of the State of Califomia, Contra Costa County, and are therefore judicially noticeable under Evid. Code §452(d). They are relevant to this action as Defendant Napa. 10 County Office of Education relied on the tentative ruling, final decision, and declaration in 11 calculating its attomeys’ fees in filing the anti-SLAPP motion. 12 5 13 DATED: Apmil 10, 2024 EDRINGTON, SCHIRMER & MURPHY LLP Dv 14 a8 15 ZS 16 By aZo& Timothy Vilma. P’Munphy, Esq. 60 17 pez, Esq. ge Attomeys for Defe 18 NAPA COUNTY OF#ICE OF EDUCATION 19 20 21 23 24 25 26 27 2. Request for Judicial Notice in Support of Defendant’s Motion for Attomeys’ Fees EXHIBIT A ai oF a Superior Court of California County of Napa Minutes Case #: 19CV000733 Charles J Berry vs Pope Valley Elementary Unified School District et al Hearing Date: 05/12/2022 Hearing Time: 8:30 AM Judicial Officer: Scott R.L. Young Clerk: J Chapman Court Reporter: No Court Reporter Interpreter: Courtroom: Courtroom B Parties Present: Berry, Charles J Plaintiff Johnson, Jimmie Attorney via ZOOM Meyer, Jordan Attorney via ZOOM NATURE OF PROCEEDINGS The matter comes on calendar regularly this date for a Motion to Strike. HEARING The Court has received, read and considered Plaintiff's deciaration filed today's date. The Court grants request of the Plaintiff and hears oral arguments of Counsel. After comments, the Court orders this matter taken under submission for consideration and ruling. Outside the presence of counsel, the Court orders the following tentative ruling shall be adopted as modified by the Court and incorporated into the minutes of the Court, making it the order of the Court: [1] DEFENDANT POPE VALLEY S SPECIAL MOTION TO STRIKE The motion is GRANTED. Plaintiff Charles J. Berry s third amended complaint (TAC) as against Defendant Pope Vailey Union Elementary Schoo! District (District or Defendant) is ordered stricken in its entirety. Defendant s request for attorneys fees is GRANTED. Plaintiff is ordered to pay to Defendant, care of its attorneys, sanctions in the amount of $8,507.00 no later than 20 days after notice of entry of this order. |. PROCEDURAL MATTERS Defendant moves, pursuant to Code of Civil Procedure section 425.16, to strike the TAC and for an award of attorney fees for costs incurred in bringing this motion. The motion is brought on the grounds that each of the claims asserted against the District arise out of written and oral communications protected under Code of Civil Procedure section 425.16, subdivision (e), and because Plaintiff cannot establish a probability of prevailing on any of the claims. Defendant s request for judicial notice is GRANTED, but not for the truth of the matters asserted therein. (Evid. Code, 452, subd. (d); Steed v. Dept of Consumer Affairs (2012) 204 Cal.App.4th 112, 121, 124; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Defendant s 16-page memorandum in support of its motion exceeds the maximum page limit. (See Rules of Court, rule 3.1113(d) [ no opening or responding memorandum may exceed 15 pages ].) Plaintiff s opposition filed on May 4, 2022 was not timely filed. (See Code Civ. Proc., 1005, subd. (b) [ All papers opposing a motion . . . shall be filed with the court and a copy served on each party at least nine court days. ].) While the Court is permitted to disregard memoranda that exceed the page limit or that are filed late, the Court exercises its discretion to consider the excessive memorandum and late-filed papers in support of Plaintiff s opposition. (See Rules of Court, rules 3.1113, subd. (g) and 3.1300, subd. (d).) Finally, the Court notes that the Opinion of the Court of Appeal dated September 16, 2021 is ambiguous with respect to whether it allows Plaintiff to file a motion for leave to amend his complaint to add new causes of action, or whether it bypasses the motion for leave procedure and simply allows Plaintiff to file an amended complaint with new causes of action, as Plaintiff has done. (Opinion dated 9/16/21, Court of Appeal, First Appellate District, Division Three, Case No. A160256 (Opinion), at 2 [ We also hold that the trial court abused its discretion by refusing to give Berry the opportunity to file a motion to amend his complaint to add new causes of action. ], 18 [ Accordingly, it was an abuse of discretion to deny Berry the opportunity to file a motion for leave to amend. J.) It appears the Court of Appeal intended its ruling to allow Plaintiff to file a motion for leave to amend, as it expressly contemplated that respondents may still oppose any motion for leave to amend filed by Berry. (Opinion, at 18, n.6; but see id. at 18 [ We also reverse the judgment to give Berry the opportunity to amend his complaint to add new causes of action. ].) However, Defendant does not object to Plaintiff s filing of his TAC without moving for leave to amend, and therefore, any contention that the TAC was not properly filed is deemed waived. The subject matter of Plaintiff s evidentiary objections and inferences that Plaintiff requests the Courtto make from the Burkhart declaration are not material to the court s disposition of the motion, and on those grounds, are MOOT. Plaintiff s objections to the declaration of Kathleen Darmagnac are DENIED on the ground that the Court has the discretion to make an award of attorney s fees based on an attorney s declaration without requiring the production of billing records, invoices, or detailed time records. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487-88.) Il, LEGAL ANALYSIS A. Legal Standard A defendant may bring a special motion to strike any cause of action arising from any act of that person in furtherance of the person s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. (Code Civ. Proc., 425.16, subd. (b)(1).) This code section is commonly known as the anti-SLAPP statute. When ruling on an anti-SLAPP motion, the trial court employs a two-step process. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) Initially, the moving defendant bears the initial burden of establishing that the challenged allegations or claims aris[e] from protected activity in which the defendant has engaged. [Citation.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least minimal merit. [Citation.] If the plaintiff fails to meet that burden, the court will strike the claim. (Ibid.) In making its determination, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Code Civ. Proc., 425.16, subd. (b)(2).) { All future references are to the Code of Civil Procedure unless otherwise specified.} B. The First Prong: Protected Activity At the first step of the analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. [Citation.] And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff s claims. [Citations.] At this stage, the question is only whether a defendant has made out a prima facie case that activity underlying a plaintiff s claims is statutorily protected [Citations], not whether it has shown its acts are ultimately lawful. (Wilson, supra, 7 Cal.Sth at 887-88.) If conduct that supplies a necessary element of a claim is protected, the defendant s burden at the first step of the anti-SLAPP analysis has been carried. (Id. at 892.) 1. All Causes of Action Except the Seventh Cause of Action Defendant argues that all of Plaintiff s causes of action against it with the exception of the Seventh Cause of Action for Abuse of Process are based on the allegedly wrongful conduct of Superintendent Burkhart (Burkhart). (Support Memo., at 13:1-4.) Specifically, Plaintiff alleges that Burkhart injured Plaintiff through: (1) speaking with the students in class as part of his investigation into Plaintiff s misconduct (TAC, at 25); (2) sending the two letters to the NCOE and the Commission on Teacher Credentialing (CRC) (TAC, 14); and (3) making statements to law enforcement that resulting in a criminal investigation (TAC, 18). (Support Memo., at 13:4-9.) Plaintiff does not dispute that its claims against the District in the TAC, other than the Seventh Cause of Action, arise from these three categories of conduct. (Opposition, at 3:5-10.) The Court cannot disagree. It finds that the First Cause of Action for Malicious Prosecution is based on Burkhart writing his letter to the CTC and institut[ing] a criminal investigation against plaintiff. (TAC, at 25.) The Second Cause of Action for Defamation and Eighth Cause of Action for Undue influence arises from Burkhart s communications with the students. (TAC, at 25-27.) The Third Cause of Action vaguely asserts that additional defamatory communications were made. (TAC, at 26.) However, reviewing the TAC as a whole, no other defamatory communications are alleged other than the three categories identified in Defendant s motion. Plaintiff s Fourth Cause of Action for Retaliation is based on Burkhart s statements to law enforcement. (TAC, 18.) Plaintiff s Fifth and Sixth causes of action arise from allegations that Defendant conducted its investigation without any meaningful procedures whatsoever and denied him the procedures to which he was entitled as a matter of policy because he is male. (TAC, at 26, 7(S)-(t), 13, 15, 16, 18-19, 22, 26-28.) In essence, these causes of action assert that the allegations made in the letters, to law enforcement, and while speaking with the students were improper because the investigation was inadequate. Plaintiff argues that the three categories of conduct are not protected activity under Section 425.16 because the conduct is not of public interest, was not made in an official proceeding authorized by law, and a public employee acting pursuant to their official duties is not protected for First Amendment purposes. (Opposition, at 3:11-6:4.) The Court considers each of the categories separately below. i, Speaking with the Students The allegations in the TAC regarding student communication involve Burkhart purportedly encouraging, repeating, and soliciting from the students false and defamatory accusations against Plaintiff. (See TAC, 7(d), (0), 14, at 25, 27.) These communications allegedly occurred on May 8, 2018 and comprised the information in Burkhart s two letters dated May 9, 2018 to the NCOE and the California Commission on Teacher Credentialing (CTC). (TAC, 14.) Section 425.16, subdivision (e)(1) and (2), protects any written or oral statement or writing made before a(n]. . . Official proceeding authorized by law and any written or oral statement or writing made in connection with an issue under consideration or review by a[n].. . official proceeding authorized by law. (Code Civ. Proc., 425.16, subd. (e)(1), (2).) [I]n general, an investigation into a public employee s conduct is an official proceeding. (Verceles v. Los Angeles Unified School Dist. (2021) 63 Cal.App.5th 776, 787.) Notably, Subdivision (e)(1) and (2) of section 425.16 does not require the defendant to show a public issue or issue of public interest. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1395; Laker v. Board of Trustees of Calif. State Univ. (2019) 32 Cal.App.5th 745, 764 [ Investigations necessarily involve petitions and speech. J.) These student communications were made before and/or in connection with the review of a public employee s (here, Plaintiff s) conduct. Thus, the authorities support that this category properly constitutes protected activity under Section 425.16, subdivision (e)(1) and (2). (Code Civ. Proc., 425.16, subd. (e)(1), (2).) ii. Sending the Two Letters The two letters at issue are those sent by Burkhart dated May 9, 2018 to the NCOE and the CTC allegedly reporting a mixture of false allegations, partially true (but misleading through his omission or elaboration) allegations, and false innuendo .. . composed for the purpose of falsely portraying plaintiff in a negative light, causing psychological anguish, and ending his teaching career. (TAC, 14. Protected activity under the antiSLAPP statute includes any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc., 425.16, subd. (e)(4).) Authority supports that communications reporting/discussing a teacher s wrongdoing and misconduct fall within the protections under this Subdivision of the anti-SLAPP statute. (See Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1176-77 [ [T]here is little question the letter [describing a teacher s misconduct] implicates issues of public interest [under Section 425.16, subd. (e)(4)], including providing schoolchildren with an appropriate education and protecting them and school employees from abuse, bullying, and harassment. ] [citing cases].) Plaintiff argues in opposition that the letters were deficient and not authorized by law. In order for speech to be illegal as a matter of law, the defendant must concede the point, or the evidence conclusively demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the first step. (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424.) Moreover, illegal means criminal rather than merely violation of a statute or common law standard. (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.) Plaintiff provides no evidence, and there is nothing before the Court which suggests, that the letters are illegal as a matter of law. That Burkhart allegedly used classroom time or was not authorized to send the letter is not criminal conduct, although Plaintiff argues it violated statutory law. Thus, this category of conduct is protected activity under Section 425.16, subdivision (@)(4). (Code Civ. Proc., 425.16, subd. (e)(4).) iii. Making Statements to Law Enforcement Instituting a criminal investigation against Plaintiff by making a report to law enforcement is protected activity under Section 425.16, subdivision (e)(2). (See Schaffer v. City & County of San Francisco (2008) 168 Cal.App.4th 992, 999, citing Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [communications with district attorney and police and attempts to press charges were communications seeking official investigations into perceived wrongdoing and thus protected by 425.16].) Even where a plaintiff was never formally charged with misconduct or a crime, communications preparatory to or in anticipation of the bringing of an official proceeding are within the protection of section 425.16. (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544, citing Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) Thus, this category of conduct is protected activity under Section 425.16, subdivision (e) (2). (Code Civ. Proc., 425.16, subd. (e)(2).) iv. Overall Investigation Plaintiff s causes of action alleging the entire investigation was deficient are also covered by the anti-SLAPP statute. Where, as here, an investigation protected under Section 425.16 is the wrong complained of that supplies a key element of a cause of action, a defendant s initial burden is satisfied. (Jeffra v. California State Lottery (2019) 39 Cal.App.Sth 471, 482.) As discussed above, Burkhart s investigation into Plaintiff s misconduct speaking with the students, sending letters to NCOE, and making claims to law enforcement is protected under Section 425.16, subdivision (@)(1), (2), and (4). Because the parties do not dispute that all of Plaintiff s causes of action, with the exception of the Seventh Cause of Action, arise from the aforementioned categories of conduct, and because the categories of conduct constitute protected activity, Defendant has met its burden of showing the First, Second, Third, Fourth, Fifth, Sixth, and Eighth Causes of Action arise from protected activity. 2. Seventh Cause of Action Defendant contends that the Seventh Cause of Action is based on the allegation that [t]he attorneys of both defendant have abused the legal process as they made claims (in the present matter) known to them to be false, and filed documents known to them to contain false statements. (TAC, at 27.) The anti-SLAPP statute protects all petition-related activity before a governmental body whether or not the statements involve a public issue: [Alli that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116.) Pleadings, statements and writings in connection with civil litigation are covered by the anti-SLAPP statute. A statement or writing is in connection with litigation if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation. (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.) Because the alleged statements comprising this cause of action were made in connection with the litigation, this cause of action implicates protected activity under Section 425.16, subdivision (e)(2). Thus, Defendant has met its burden of showing this cause of action arises from protected activity. C. The Second Prong: Probability of Prevailing on the Merits For the second step, plaintiff must then demonstrate its claims have at least minimal merit. (Park, supra, 2 Cal.5th at 1061.) [T]he plaintiff s second-step burden is a limited one. The plaintiff need not prove her case to the court [citation]; the bar sits lower, at a demonstration of minimal merit [citation]. At this stage, [t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff s evidence as true, and evaluates the defendant s showing only to determine if it defeats the plaintiff s claim as a matter of law. (Wilson, supra, 7 Cal.5th at 891.) 1. First Cause of Action Malicious Prosecution Malicious prosecution consists of the initiation and maintenance of legal proceedings against another with malice and without probable cause. (Hardy v. Vial (1957) 48 Cal.2d 577, 580.) The proceedings on which the tort is based may be criminal, civil, or administrative. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.) To establish a cause of action for the malicious prosecution, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant; (2) was terminated in favor of plaintiff; (8) was brought without probable cause; and (4) was initiated with malice. (Bertero v. Nat | Gen. Corp. (1974) 13 Cal.3d 43, 50; Williams v. Taylor (1982) 129 Cal.App.3d 745, 754.) Plaintiff s Malicious Prosecution claim is based on Burkhart s letter to the CTC and statements Burkhart allegedly made to law enforcement, both of which allegedly resulted in no action taken against Plaintiff. (TAC, at 25.) The only relevant evidence Plaintiff submits in support of this cause of action is his attempt to incorporate the TAC into this declaration by reference, as if wholly set forth Statements made in the third person are true as if made in the first person. (Declaration of Charles Berry ( Berry Decl. ), .) Plaintiff expressly excludes from his declaration allegations made on information and belief. (Berry Decl., 4.) Plaintiff is essentially solely relying on the TAC in support of the merits of his claims, which is not admissible evidence. (Monster Energy Co. v. Schechter (2019) Cal.5th 781, 788 [ As to the second step, a plaintiff seeking to demonstrate the merit of the claim may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. ].) Even construing the TAC as admissible evidence, the TAC does not provide allegations that Burkhart acted without probable cause i.e., without a suspicion founded upon circumstances warranting a reasonable man s belief that grounds exist for i jating proceedings an essential element of a malicious prosecution claim. (Bertero, supra, 13 Cal.3d at 55.) While the TAC alleges malice and that Burkhart communicated false and misleading statements to the CTC and law enforcement, the TAC acknowledges that Burkhart s communications were initiated by three students at [the District] falsely accus|ing] plaintiff. (TAC, 14, 18.) Plaintiff s allegations regarding why Burkhart should have known the accusations were false are made on information and belief, and therefore, not admissible evidence. (TAC, 14; see Sweetwater Union High School Dist. v. Gilbane Building Co. 6 Cal.Sth 948 [a statement made only on information and belief is incompetent for lack of personal knowledge].) To make a prima facie case of a lack of probable cause in response to a special motion to strike, the plaintiff must submit evidence showing that no reasonable person would have thought the defendant s action against the plaintiff was tenable in light of the facts the defendant knew when the action was filed. (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 875-76.) In this context, Defendant submits evidence establishing that Burkhart sent the letterto CTC [i]n accordance with the law that requires a school district to notify the CTC if they are not using a substitute teacher and the reason why. (Declaration of Ken J. Burkhart ( Burkhart Decl., 13.) Defendant further submits evidence that on the advice of [the District s] counsel, Burkhart spoke to a deputy from the Napa County Sheriff s office about [Plaintiff] after Plaintiff s government claim raised further concerns about student safety. (Id.,_ 14.) Both of these statements suggest that Burkhart acted with probable cause. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289 [the court may consider defendant s declaration in assessing the plaintiff s probability of prevailing on its claim]; Citizens State Bank v. Hoffman (1941) 44 Cal.App.2d 854, 857 [acting on the advice of counsel establishes probable cause].) Based on the foregoing, the Court is unable to conclude that Plaintiff has met his burden to show a reasonable probability of prevailing on this cause of action. 2. Second, Third, Fourth, Seventh, and Eighth Causes of Action As Defendant contends, Plaintiff s Second and Eighth Causes of Action concern Burkhart s preliminary interviews of the school children, the Third Cause of Action concerns communications between Burkhart, District employees, and NCOE regarding the allegations of wrongdoing connected to the investigation of Plaintiff, the Fourth Cause of Action concern statements Burkhart allegedly made to law enforcement, and the Seventh Cause of Action concerns the District s legal counsel raising claims against Plaintiff. (Reply at 7:18-8:21.) Pursuant to Civil Code section 47, subdivision (b), the litigation privilege applies to any communication (1) made in an official proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objectives of the proceeding; and (4) involved litigants or other participants authorized by law. (Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 668.) The litigation privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) The communications with students, law enforcement, NCOE, and CTC, which make up these causes of action, are part of official proceedings protected by Civil Code section 47, thus satisfying the first condition. Second, Defendant s alleged acts were each logically related to the initiation of an investigation by the District, NCOE, CTC, and law enforcement. Moreover, any communication with an official agency designed to prompt investigation by that agency is absolutely privileged. (Long v. Pinto (1981) 126 Cal.App.3d 946, 948.) Third, the objectives of an investigation for possible disciplinary violations were served by Defendant s alleged acts. Finally, it is well settled that absolute privilege extends in quasi-judicial proceedings to preliminary interviews and conversations with potential witnesses. (Lebbos, supra, 165 Cal.App.3d at 668, citing Pettitt v. Levy (1972) 28 Cal.App.3d 484, 490-91.) Thus, the statements at issue involve the relevant parties, including potential witnesses and disciplinary bodies. These causes of action are therefore barred by the litigation privilege enumerated in Civil Code section 47. The cases Plaintiff cites in opposition do not support a contrary holding, and Plaintiff provides no evidence in support of his probability of prevailing on these claims. (See Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 669 [holding that absolute immunity under Civil Code section 47 applied to defendant s actions in initiating and pursing an investigation of plaintiff, even on allegedly false grounds and with malicious intent]; Action Apartment Association v. City of Santa Monica (2007) 41 Cal.4th 1232, 1246 [listing crimes under the Penal Code and Business and Professions Code to which the litigation privilege does not apply; none of which are at issue in the instant matter].) Thus, Plaintiff has failed to satisfy his burden of demonstrating a probability of prevailing on his Second, Third, Fourth, Seventh, and Eighth Causes of Action. 3. Fifth Cause of Action Procedural Due Process Defendant asserts that Plaintiff was a substitute teacher and an at-will employee. (Educ. Code, 44953.) Substitutes may be dismissed at any time and without cause and, therefore, have no ground to claim [they were] wrongly terminated without cause or due process. (Vasquez v. Happy Valley Union School Dist. (2007) 159 Cal.App.4th 986; Educ. Code, 44953.) However, even when a public employee occupies an at-will position, terminable without cause ... (and hence... [has] no due process property right to that position), it is well established that an at-will [public] employee s liberty interests are deprived when his discharge is accompanied by charges that might seriously damage his or her standing and associations in the community or impose[] on him a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities. [Citations.] When such a liberty deprivation occurs, the employee has a right to a name-clearing hearing. (Kreutzer v. City and County of San Francisco 166 Cal.App.4th 306, 320 [emphasis in original].) Plaintiff argues that he has a liberty interest for procedural due process because Burkhart made a charge, imposed a stigma, and barred Plaintiff form working in Napa schools. A similar argument was made in Kreutzer, where the court held that a teacher s discharge did not violate his liberty interest when no stigmatizing charges were publicly disseminated, and [plaintiff] was not precluded from obtaining other employment even though the true reason for the discharge was in fact based on undisclosed stigmatizing reasons. (Id., at 320-21.) Here, Plaintiff s status was inactivated without any reason being given. The only publicly disseminated communication regarding Plaintiff was by NCOE placing Plaintiff inactive [e}ffective immediately. (TAC, Exh. L.) The comment that Plaintiff was found not a good fit was made solely to Plaintiff himself. (TAC, Exh. M.) To the extent Plaintiff contends that the act of being placed inactive without reason is in and of itself stigmatizing, because potential employers would assume there were reasons and that reflects adversely on him, that argument has been rejected by several courts. (See Kreutzer, supra, 166 Cal.App.4th at 321-22 [ [ajn inference drawn from dismissal alone . . . is insufficient to implicate a liberty interest. ].) In fact, Plaintiff alleges in the TAC that he had a very positive interview with the hiring officer of Yuba College in 2018, who encouraged plaintiff to apply to teach a fundamental skills class, but Plaintiff chose not to apply believing that the application would not be successful with the false statements by NCOE and the District. (TAC, 20.) The above authority makes clear that Plaintiff s Fifth Cause of Action is likely barred as a matter of law as no property or liberty interests were implicated. Plaintiff supmits no evidence to support the merits of this cause of action. As such, Plaintiff has failed to meet his burden of demonstrating a probability of prevailing on the Fifth Cause of Action. 4. Sixth Cause of Action Discrimination Defendant argues that Plaintiff cannot prevail on this cause of action because governmental entities (here, Defendant) are not persons within the meaning of 42 U.S.C. 1983, upon which Plaintiff s Sixth Cause of Action is brought. (Will v. Mich. Dep t of State Police (1989) 491 U.S. 58, 71 [ [Neither a State nor its officials acting in their official capacities are persons under 1983. ]; McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1207-08 [ [A] state, an entity acting as an arm of the state, or a state official sued in his official capacity may not be considered a person who may be liable under section 1983. ], citing Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1115 [Cal. school district as an arm of the state was not subject to liability under 1983 claim]; Belanger v. Madera Unified School Dist. (Sth Cir. 1992) 963 F.2d 248 [former principal s claim that she was demoted to teacher in violation of 1983 was properly dismissed because Cal. schoo! districts are agents of the state].) Plaintiff argues in opposition that 42 U.S.C. 1983 does not concern free speech. However, this appears to be an argument regarding the first prong of the anti-SLAPP analysis and does not support his burden on the second prong. With respect to the first prong, as discussed above, the import is whether the activity comprising the cause of action is protected under the anti-SLAPP statute, and not whether the law on which the cause of action is based pertains to free speech. As such, Plaintiff has failed to satisfy his burden of demonstrating a probability of prevailing on his Sixth Cause of Action. D. Attorneys Fees {Al prevailing defendant on a special motion to strike shall be entitled to recover that defendant s attorney s fees and costs. (Code Civ. Proc., 425.16, subd. (c)(1).) Defendant s special motion to strike is successful. As such, mandatory sanctions against Plaintiff are warranted. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 [defendants who successfully eliminated trade libel cause of action prevailed although defamation claim remained in the litigation].) Defendant requests sanctions in the amount of $11,444.50. Defendant asserts and provides evidence that it has incurred costs in the amount of $8,507.00, to date, in bringing this motion, and projected that it would incur an additional $2,350.00 in preparing a reply brief and $587.50 in attending hearing on the matter. (Declaration of Kathleen Darmagnac, at 2.) The Court finds that the hours spent preparing the motion and the hourly rate are reasonable. However, the Court does not award sanctions based on estimated future costs. For the foregoing reasons, Defendant s request for sanctions is GRANTED in part, in the amount of $8,507.00. Plaintiff s request made at oral argument to offset the sanctions awarded herein by the anticipated amount of attorneys fees due to Plaintiff on his contemplated motion for attorneys fees following his appeal is DENIED. The Court does not award anticipated attorneys fees. {2] DEFENDANT NAPA COUNTY OFFICE OF EDUCATION S SPECIAL MOTION TO STRIKE The motion is GRANTED in part. Plaintiff Charles J. Berry is ordered to STRIKE his Third, Fifth, Sixth, and Seventh causes of action, and ail claims and allegations supporting those causes of action in his Third Amended Complaint (TAC). Plaintiff is further ordered to STRIKE the allegations regarding the refusal to rescind the two emails at issue discussed infra with respect to his Fourth Cause of Action. To be clear, the only cause of action which is not ordered Stricken is Plaintiff s Fourth Cause of Action based on allegations of the refusal to reinstate Plaintiff. Plaintiff shall file an amended complaint consistent with this ruling within 10 days after receipt of notice of entry of this order. Defendant s request for attorneys fees is GRANTED. Plaintiff is ordered to pay to Defendant, care of its attorneys, sanctions in the amount of $5,494.50 no later than 20 days after notice of entry of this order. |. PROCEDURAL MATTERS Defendant Napa County Office of Education (NCOE or Defendant) moves, pursuant to Code of Civil Procedure sections 435 and 436 , to strike the TAC. The motion is brought on the grounds that the TAC is based on facts and claims that arise from protected activity under Code of Civil Procedure section 425.16 and because Plaintiff cannot demonstrate a probability of prevailing against NCOE on any of the causes of action. Defendant s request for judicial notice is GRANTED, but not for the truth of the matters asserted therein. (Evid. Code, 452, subd. (d); Steed v. Dept ot Consumer Affairs (2012) 204 Cal.App.4th 112, 121, 124; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Defendant s 18-page memorandum in support of its application exceeds the maximum page limit. (See Rules of Court, rule 3.1113(d) [no opening or responding memorandum may exceed 15 pages ].) Plaintiff s opposition filed on May 4, 2022 was not timely filed. (See Code Civ. Proc., 1005, subd. (b) [ All papers opposing a motion. . . shall be filed with the court and a copy served on each party at least nine court days. ].) While the Court is permitted to disregard memoranda that exceed the page limit or that are filed late, the Court exercises its discretion to consider the excessive memorandum and late-filed papers in support of Plaintiff s opposition. (See Rules of Court, rules 3.1113, subd. (g) and 3.1300, subd. (d).) Finally, the Court notes that the Opinion of the Court of Appeal dated September 16, 2021 is ambiguous with respect to whether it allows Plaintiff to file a motion for leave to amend his complaint to add new causes of action, or whether it bypasses the motion for leave procedure and simply allows Plaintiff to file an amended complaint with new causes of action, as Plaintiff has done. (Opinion dated 9/16/21, Court of Appeal, First Appellate District, Division Three, Case No. A160256 (Opinion), at 2 [ We also hold that the trial court abused its discretion by refusing to give Berry the opportunity to file a motion to amend his complaint to add new causes of action. ], 18 [ Accordingly, it was an abuse of discretion to deny Berry the opportunity to file a motion for leave to amend. ].) It appears the Court of Appeal intended its ruling to allow Plaintiff to file a motion for leave to amend, as it expressly contemplated that respondents may still oppose any motion for leave to amend filed by Berry. (Opinion, at 18, n.6; but see id. at 18 [ We also reverse the judgment to give Berry the opportunity to amend his complaint to add new causes of action. ].) However, Defendant does not object to Plaintiff s filing of his TAC without moving leave to amend, and therefore, any contention that the TAC was not properly filed is deemed waived. Plaintiff s objections to the declaration of Jordan C. Meyer are DENIED on the ground that the Court has the discretion to make an award of attorney s fees based on an attorney s declaration without requiring the production of billing records, invoices, or detailed time records. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487-88.) The inferences that Plaintiff requests the Court to make from the Zikmund and Alexander declaration are not material to the court s disposition of the motion, and on those grounds, are MOOT. { This reference appears to be in error as the remainder of the Defendant s notice and supporting papers cite to the proper statutory grounds for relief. The Court treats Defendant s supporting papers as properly curing any defect in the notice. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126.)} I. LEGAL ANALYSIS A. Legal Standard A defendant may bring a special motion to strike any cause of action arising from any act of that person in furtherance of the person s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. (Code Civ. Proc., 425.16, subd. (b)(1).) This code section is commonly known as the anti-SLAPP statute, When ruling on an anti-SLAPP motion, the trial court employs a two-step process. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) Initially, the moving defendant bears the initial burden of establishing that the challenged allegations or claims aris[e] from protected activity in which the defendant has engaged. [Citation.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least minimal merit. [Citation.] If the plaintiff fails to meet that burden, the court will strike the claim. (Ibid.) In making its determination, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subd. (b)(2).) B. The First Prong: Protected Activity At the first step of the analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. [Citation.] And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff s claims. [Citations.] At this stage, the question is only whether a defendant has made out a prima facie case that activity underlying a plaintiff s claims is statutorily protected [Citations], not whether it has shown its acts are ultimately lawful. (Wilson, supra, 7 Cal.5th at 887-88.) If conduct that supplies a necessary element of a claim is protected, the defendant s burden at the first step of the anti-SLAPP analysis has been carried. (Id. at 892.) Defendant argues that all of Plaintiff s claims against it with the exception of the Seventh Cause of Action for Abuse of Process are based on the following conduct: (1) Upon receiving Mr. Burkhart s letter of allegations, Mr. Zikmund and Ms. Alexander summarily . . ., and with reckless disregard for the truth, created their own falsehoods ; and (2) sending emails, one to districts within NCOE that was defamatory and a second sent to Plaintiff that was defamatory. (Support Memo., at 8:1-6.) More specifically, Defendant points out that two statements go to the very heart of Plaintiff s demand for relief against NCOE: the first, directing districts within NCEO to place Plaintiff inactive on the substitute teacher call list, and, the second, informing Plaintiff that he was nota good fit. (Support Memo., at 7:13- 17.) Defendant contends that these written statements made in response to the claims made by students are the basis for all of Plaintiff s claims other than the Seventh Cause of Action for abuse of process. (Support Memo., at 7:25-28,) 1. Third Cause of Action Defamation Plaintiff s Third Cause of Action is based on additional defamatory communications by the employees of [NCOE]. (TAC, at 26.) Defendant argues that this cause of action necessarily arises from the two emails referenced above, as no other defamatory statements by NCOE are alleged. Plaintiff objects, contending that the two emails are merely collateral or incidental to this claim. The Court disagrees, as Plaintiff could not omit reference to those emails and still have a defamation claim given that no other defamatory statements by NCOE are alleged in the TAC. Section 425.16, subdivision (e)(1), protects any written or oral statement or writing made in connection with an issue under consideration or review by a(n] .. . official proceeding authorized by law. (Code Civ. Proc., 425.16, subd. (e)(2).) Notably, Subdivision (e)(1) of section 425,16 does not require the defendant to showa public issue or issue of public interest. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1395; Laker v. Board of Trustees of Calif. State Univ. (2019) 32 Cal.App.Sth 745, 764 [ Investigations necessarily involve petitions and speech. J.) A communication by a state-entity (here, NCOE) stating that a teacher s status is inactive and that a teacher is not agood fit as a result of receiving a report from a school district detailing the teacher s alleged misconduct properly constitutes a written statement made in connection with an issue under consideration or review by an official proceeding. (Code Civ. Proc., 425.16, subd. (¢)(2).) indeed, as Plaintiff alleges in the TAC, it is NCOE s duty to evaluate the qualifications of substitute teachers in Napa County. (TAC, 13, 36.) Thus, the authorities support that the two emails properly constitute protected activity under Section 425.16, subdivision (e){2). Thus, Defendant has met its burden of establishing that the Third Cause of Action arises from protected activity in which Defendant has engaged. 2. Fourth Cause of Action Retaliation Defendant recognizes that Plaintiff s retaliation claim is based on the allegation Plaintiff was not re-activated after the CTC took no action in response to Mr. Burkhart s letter. (Support Memo., at 8:16-17, citing TAC at 26.) Plaintiff agrees that the basis of Defendant s alleged liability on his retaliation claim is the NCOE refusal to reinstate plaintiff. (Opposition, at 5:12-16, 20-23.) The Court cannot disagree, although it finds that an additional and separate fundamental basis for Plaintiff s retaliation claim is Defendant s refusal to rescind the two emails discussed above. (See TAC, 7 [ Defendants have retaliated against plaintiff for his descriptions of their employee lawlessness, by refusing to reinstate plaintiff and retract falsehoods [emails], although defendants know that after a careful review and consideration given to the facts by the CTC, the CTC did not reproach plaintiff to the slightest degree. ], 18 [ Although employees at the NCOE know that the CTC investigation against plaintiff ended without the slightest reproach of plaintiff, they will not retract their emails, which failure to retract is in retaliation for plaintiff s statements concerning their utter lawlessness. ], 24 [ These failures (by both defendants) to rescind are in retaliation for the descriptions of unlawful and unethical and educationally clueless behavior by defendants employees, which descriptions appeared in plaintiff s emails, tort claims and complaints, and other documents filed in Napa Superior Court. ], 25 [ Nothing prevents either defendant from rescinding injurious statements and documents and policies, excepting a retaliatory posture. ) Both categories of conduct (1) Defendant s refusal to rescind the two emails, and (2) Defendant s decision to not re- activate Plaintiff s status make up the adverse action that supplies a necessary element of Plaintiff s retaliation claim. (See Wilson, supra, 7 Cal.5th at 885 [ To prove unlawful retaliation, [plaintiff] must. . . show [defendant] subjected him to adverse employment actions for impermissible reasons namely, because he exercised rights guaranteed him by law. J.) As discussed above, the two emails constitute protected activity. Regardless of whether the allegation is that the emails were sent in the first place or were not rescinded after the fact, the underlying communication itself was in co