Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Charles J Berry vs Pope Valley Elementary Unified School District et al| Trellis.Law

On May 15, 2019 a FINAL - MPA iso Anti-SLAPP with TOA and TOC was filed involving a dispute between Berry, Charles J, and Napa County Office Of Education, Pope Valley Elementary Unified School District, for Defamation Unlimited (13) in the District Court of Napa County.

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[Exempt from payment of filing fees
pursuant to Government Code § 6103]

1 LOUIS A. LEONE (SBN 099874)
KATHLEEN DARMAGNAC (SBN 150843)
2
LEONE ALBERTS & DUUS
3 1390 Willow Pass Rd., Ste. 700
Concord, California 94520
4 Telephone: (925) 974-8600
5
Facsimile: (925) 974-8601

6 Attorneys for Defendant
POPE VALLEY UNION ELEMENTARY
7 SCHOOL DISTRICT
8
IN THE SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF NAPA
10

11 CHARLES J. BERRY, an individual, Case No.: 19CV000733
12
Plaintiff,
13 MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
14 DEFENDANT POPE VALLEY UNION
ELEMENTARY SCHOOL DISTRICT’S
POPE VALLEY UNION ELEMENTARY SPECIAL MOTION TO STRIKE
15
SCHOOL DISTRICT,
16 NAPA COUNTY OFFICE OF [CCP § 425.16]
EDUCATION, and
17 DOES 1 to 10, inclusive, Date: May 5, 2022
18 Time: 8:30 a.m.
Defendants. Dept: B
19
Remittitur Filed: 1/12/2022
20
Third Amended Complaint Filed: 2/14/2022
21 Complaint Filed: 5/15/2019

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
1
1 TABLE OF CONTENTS
2

3 INTRODUCTION .......................................................................................................... 6
4 FACTUAL BACKGROUND........................................................................................... 8
5
PROCEDURAL HISTORY ............................................................................................ 9
6
ARGUMENT ............................................................................................................... 10
7

8 I. Legal Standard Governing Anti-SLAPP Motions ............................................... 10

9 II. All of Plaintiff’s Claims Arise From Protected Activity ........................................ 12
10
III. Plaintiff Cannot Demonstrate a Probability of Prevailing on Any of His Claims
11
Against the District ............................................................................................ 16
12
A. The Majority of Plaintiff’s Claims Are Barred by Civil Code § 47 ....................... 17
13
B. Plaintiff’s First and Fourth Claims Are Barred by Law of the Case .................... 18
14

15 C. Plaintiff’s Procedural Due Process Claim Fails as a Matter of Law ................... 19

16 D. Plaintiff’s Sixth Cause of Action under Section 1983 Fails as a Matter of Law .. 20
17
IV. The District is Entitled to Costs (Including Attorney Fees) ................................ 20
18
CONCLUSION............................................................................................................ 21
19

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
2
1 TABLE OF AUTHORITIES
2
American Mfrs. Mut. Ins. Co. v. Sullivan
3 (1999) 526 U.S. 40 .................................................................................................
20

4 Baral v. Schnitt
(2016) 1 Cal.5th 376 ............................................................................................
7, 11
5
Bd. of Regents v. Roth
6 (1972) 408 U.S. 564 ...............................................................................................
19
7
Belanger v. Madera Unified Sch. Dist.,
8 (9th Cir. 1992) 963 F.2d 248 .................................................................................
20

9 Bonni v. St. Joseph Health System
(2021) 11 Cal.5th 995 .............................................................................................
12
10
Brody v. Montalbano
11 (1978) 87 Cal.App.3d 725 ......................................................................................
17
12 Carmen v. San Francisco Unified Sch. Dist.,
13
(N.D. Cal. 1997) 982 F.Supp. 1396 .......................................................................
20

14 Chavez v. Mendoza
(2001) 94 Cal.App.4th 1083 ...................................................................................
15
15
Defense League
16 (2006) 135 Cal.App.4th 606 ...................................................................................
20
17 Guatay Christian Fellowship v. Cnty. of San Diego
(9th Cir. 2011) 670 F.3d 957 ..................................................................................
19
18

19
Hagberg v. Cal. Fed. Bank FSB
(2004) 32 Cal.4th 350 .............................................................................................
17
20
Hansen v. Department of Corrections & Rehabilitation
21 (2008) 171 Cal.App.4th 1537 ...........................................................................
12, 14
22 Hicks v. Richard
(2019) 39 Cal.App.5th 1167 ........................................................
7, 13, 14-15, 15, 17
23

24
Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728 .............................................................................................
15
25
Jeffra v. Cal. State Lottery
26 (2019) 39 Cal.App.5th 471 .....................................................................................
15
27 Ketchum v. Moses
(2001) 24 Cal.4th 1122 ...........................................................................................
20
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
3
1 Lebbos v. State Bar
(1985) 165 Cal.App.3d 656, .............................................................................
17, 18
2

3
Lee v. Fick
(2005) 135 Cal.App.4th 89 ...............................................................................
17, 18
4
Litinsky v. Kaplan
5 (2019) 40 Cal.App.5th 970 ...............................................................................
11, 13
6 Martin v. Kearney
(1975) 51 Cal.App.3d 309 ......................................................................................
17
7
McAllister v. Los Angeles Unified Sch. Dist.
8
(2013) 216 Cal.App.4th 1198 .................................................................................
20
9
Miller v. City of Los Angeles
10 (2008) 169 Cal.App.4th 1373 .................................................................................
12
11 Moore v. Kaufman
(2010) 189 Cal.App.4th 604 ...................................................................................
21
12
Morohoshi v. Pacific Home
13
(2004) 34 Cal.4th 482 .......................................................................................
16, 18
14
Navellier v. Sletten
15 (2002) 29 Cal.4th 82 ...............................................................................................
12

16 Okorie v. Los Angeles Unified Sch. Dist.
(2017) 14 Cal.App.5th 574 .........................................................................
12, 13 ,14
17
Picton v. Anderson Union High Sch. Dist.
18
(1996) 50 Cal.App.4th 726 .....................................................................................
17
19
Portman v. County of Santa Clara
20 (9th Cir. 1993) 995 F.2d 898 ..................................................................................
19

21 Schaffer v. City & County of San Francisco
(2008) 168 Cal.App.4th 992 ...................................................................................
14
22
Starview Property, LLC v. Lee
23
(2019) 41 Cal.App.5th 203 .......................................................................................
7
24
Taus v. Loftus
25 (2007) 40 Cal.4th 683 .............................................................................................
11

26 Tichinin v. City of Morgan Hill
(2009) 177 Cal.App.4th 1049 .................................................................................
15
27
Vasquez v. Happy Valley Union Sch. Dist.
28 (2008) 159 Cal.App.4th 969 .............................................................................
16, 19

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
4
1 Will v. Michigan Dep’t of State Police,
(1988) 491 U.S. 58 .................................................................................................
20
2

3
Wilson v. Cable News Network
(2019) 7 Cal.5th 871 ...............................................................................................
16
4
Other Authorities
5

6 Civil Code of Procedure § 425.16 ..................................................... 7, 8, 10, 11, 12, 20
7 Civil Code of Procedure § 47 ..........................................................................
17, 18, 19
Education Code, § 44953 ............................................................................................
21
8
Education Code, § 45030 ............................................................................................
20
9
U.S. Code § 425.16 ................................................................................ 8, 11, 12, 15, 16
10 U.S. Code § 1983 ........................................................................................
8, 11, 18, 21
11

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
5
1 INTRODUCTION
2 Plaintiff Charles Berry, proceeding pro se, brings this action against Pope Valley
3 Union Elementary School District (the “District”) and the Napa County Office of
4 Education (“NCOE”). In 2018, Plaintiff was working as a substitute teacher in Napa
5 County. In May 2018, three middle school students within the District reported that
6 Plaintiff had referenced a pornographic website during class. Following an
7 investigation, the Superintendent of the District (Ken Burkhart) sent letters to the
8 County Office of Education and the California Commission on Teacher Credentialing
9 accusing Plaintiff of multiple acts of misconduct. As a result, Plaintiff was no longer
10 able to work as a substitute teacher in Napa County.
11 Based on these allegations, Plaintiff brought suit against the District and NCOE,
12 asserting the following nine causes of action: (1) Libel and Slander; (2) Deceit; (3)
13 Gender Discrimination under the Fair Employment and Housing Act (“FEHA”); (4)
14 Intentional Infliction of Emotional Distress; (5) Breach of Good Faith and Fair Dealing;
15 (6) Breach of Fiduciary Duty; (7) Privacy of Personnel Files; (8) Intentional Interference
16 with a Prospective Economic Advantage; and (9) Conspiracy. Following multiple
17 demurrers, the trial court dismissed all of Plaintiff’s claims against the District and
18 Plaintiff appealed.
19 The Third District Court of Appeal issued its decision on September 16, 2021,
20 holding that all of the claims against the District (other than the FEHA) were properly
21 dismissed and remanded the case for further proceeding on the FEHA claim. In the
22 ruling, the Court of Appeal authorized Plaintiff to amend his complaint to add new
23 causes of action.
24 Following remand, Plaintiff filed the operative Third Amended Complaint (“TAC”).
25 Interestingly, Plaintiff did not re-allege his FEHA claim. Instead, he asserted eight new
26 causes of action based on the same factual allegations as the initial complaint. The
27 eight causes of action in the TAC are: (1) Malicious Prosecution – against the District;
28 (2) Defamation – against the District; (3) Defamation – against the District and NCOE;

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 (4) Whistleblower Retaliation – against both defendants; (5) Due Process – against
2 both defendants; (6) Gender and Age Discrimination under 42 U.S.C. § 1983 – against
3 both defendants; (7) Abuse of Process – against both defendants; and (8) Undue
4 Influence – against the District.
5 The District now brings this Special Motion to Strike pursuant to Code of Civil
6 Procedure (“CCP”) section 425.16—California’s anti-SLAPP statute—seeking to strike
7 all eight causes of action against the District. 1 A SLAPP—or Strategic Lawsuit Against
8 Public Participation—is a suit that has the effect of deterring citizens from engaging in
9 certain protected activity. The typical SLAPP suit involves the exact causes of action
10 asserted in this case (i.e., malicious prosecution, defamation, abuse of process, etc.).
11 (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
12 Group 2021) ¶ 7:801, p. 7(II)-47.) The purpose of California’s anti-SLAPP statute is to
13 “weed[ ] out, at an early stage, meritless claims arising from protected activity.” (Baral
14 v. Schnitt (2016) 1 Cal.5th 376, 384.)2
15 All the claims against the District in this case are based on the same core of
16 operative facts—that the District investigated the students’ complaints against Plaintiff
17 and that Superintendent Burkhart sent letters regarding the investigation to the NCOE
18 and the Commission on Teacher Credentialling. Those allegations fall squarely within
19 the protected activity identified in CCP § 425.16(e). (See Hicks v. Richard (2019) 39
20 Cal.App.5th 1167, 1176-77 [striking similar claims based on similar facts].) Moreover,
21 as explained below, Plaintiff cannot establish a probability of prevailing on any of his
22 claims against the District. As such, the District respectfully requests that all causes of
23

24
1 The District and NCOE are represented by separate counsel in this action and this
25
motion is filed only on behalf of the District.
26 2 While anti-SLAPP motions are usually required to be brought against the initial
complaint, the Court of Appeal has recognized that such motions may be brought
27
where an amended complaint asserts new causes of action based on the same facts
28 alleged in the original complaint. (Starview Property, LLC v. Lee (2019) 41 Cal.App.5th
203, 209.)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 action against it be stricken and that the District be awarded costs (including attorney
2 fees) under CCP § 425.16(c)(1).
3 FACTUAL BACKGROUND 3
4 Plaintiff is a certified substitute teacher. (TAC ¶ 12.) In April of 2018, he was
5 working as a substitute teacher for a class of seventh and eighth graders in the Pope
6 Valley Union Elementary School District. (Id., ¶ 14.) On May 8, 2018, three students
7 accused him of referencing a pornographic web site during class. (Id.) Plaintiff denies
8 that he ever mentioned the pornographic website and alleges that the students made
9 their complaint to avoid certain school obligations. (Id.)
10 In response to the accusations by the students, Ken Burkhart, the teacher of the
11 class and superintendent of the District, conducted an investigation, which included
12 interviewing students in the class. (Decl. of Ken Burkhart (“Burkhart Decl.”) ¶¶ 3-6; TAC
13 ¶ 14 [noting that Mr. Burkhart spoke with the students reporting these incidents]; Exh. J
14 to TAC [discussing Mr. Burkhart’s investigation].)
15 Following the investigation, Mr. Burkhart sent letters to the NCOE and the
16 Commission on Teacher Credentialing. (TAC ¶ 14; Burkhart Decl., Exhs. A & B) The
17 letters, which Plaintiff has attached to the TAC as Exhibits J and K, indicate that
18 Plaintiff had engaged in the following misconduct: (1) that he “[l]ed the class on a
19 lengthy discussion about the good attributes of Adolf Hitler”; (2) that he “[l]ed the class
20 on a lengthy discussion about a conspiracy to fake the moon landing”; (3) that he
21 “[a]pproached an 8th grade boy who quickly closed his laptop and accused that student
22 of watching ‘pornhub’ (a specific online adult website)”; (4) that he offered “to give a
23 lesson or help” after observing several students “reviewing the reproductive system” as
24 part of their schoolwork; (5) that Plaintiff had arrived 30 minutes late to school on May 8
25

26
3 While anti-SLAPP motions are made on the pleadings, the court has described the
27 process as a “summary-judgment-like procedure” and the statute expressly requires the
28
motion to be supported (and opposed) by declarations stating facts upon which the
liability or defense is based. (CCP § 425.16, subd. (b).) As such, to the extent
necessary, the District relies on the Declaration of Ken Burkhart.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 and was wearing inappropriate clothing (i.e., “black gym shorts and a black t-shirt”);
2 and (6) that Plaintiff had commented on another employee’s appearance, which made
3 her “very upset and” feel “harassed.” (TAC, Exhs. J & K.) Although Plaintiff claims the
4 statements in the letters were false and designed to “end[ ] his teaching career” (TAC ¶
5 14) he admits later in his complaint to discussing Hitler and the evidence to support the
6 conclusion that the Moon Landing did not occur. (TAC ¶¶ 43-44.) Plaintiff also admits
7 that he arrived 30 minutes late on May 8 and that he wore shorts and a t-shirt to class,
8 but explained that the shorts were similar to what “postal workers and occasionally
9 policemen” wear. (TAC Ex. B.)
10 Plaintiff also alleges that Mr. Burkhart “made false and misleading statements
11 against plaintiff to induce law enforcement officials to investigate plaintiff.” (TAC ¶ 18.)
12 According to Plaintiff, Mr. Burkhart’s letters resulted in Plaintiff being put on “inactive”
13 status as a substitute teacher by NCOE and that Plaintiff could not work as a substitute
14 teacher in Napa County during the 2018-2019 school year. (Id., ¶¶ 15, 21.)
15 PROCEDURAL HISTORY
16 Plaintiff filed his initial complaint in this case on May 15, 2019. He filed a First
17 Amended Complaint on July 31, 2019, asserting the following ten causes of action: (1)
18 Libel and Slander; (2) Deceit; (3) Gender Discrimination under the Fair Employment
19 and Housing Act (“FEHA”); (4) Emotional Distress; (5) Negligence; (6) Breach of
20 Fiduciary Duty; (7) Privacy of Personnel Files; (8) Intentional Interference with a
21 Prospective Economic Advantage; (9) Conspiracy; and (10) Free Speech. The District
22 and NCOE both filed demurrers, which the trial court sustained with leave to amend
23 and Plaintiff filed a Second Amended Complaint (“SAC”).
24 The SAC asserted the following nine causes of action: (1) Libel and Slander; (2)
25 Deceit; (3) Gender Discrimination under the Fair Employment and Housing Act
26 (“FEHA”); (4) Emotional Distress; (5) Negligence; (6) Breach of Fiduciary Duty; (7)
27 Invasion of Privacy; (8) Intentional Interference with a Prospective Economic
28 Advantage; and (9) infringement of Free Speech. (Request for Judicial Notice (“RJN”)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 Ex. A.) The District again filed a demurrer, which the trial court sustained with leave to
2 amend as to the negligence and FEHA claims and sustained without leave to amend
3 as to the remaining causes of action. (RJN, Ex. B [order on demurrer to SAC].) Rather
4 than filing an amended complaint on the causes of action for which the trial court had
5 granted leave to amend, Plaintiff decided not to amend and to appeal the decision.
6 The Court of Appeal issued its decision on September 16, 2021, holding that all
7 of the claims against the District (other than the FEHA) were properly dismissed and
8 remanded the case for further proceeding on the FEHA claim. (RJN, Ex. C [Court of
9 Appeal’s Decision].) In the ruling, the Court of Appeal authorized Plaintiff to amend his
10 complaint to add new causes of action. (Id.)
11 Following remand, Plaintiff filed the operative TAC. Interestingly, Plaintiff did not
12 re-allege his FEHA claim. Instead, while the TAC is based on the same factual
13 allegations as the previous complaint, he asserted eight new causes of action: (1)
14 Malicious Prosecution – against the District; (2) Defamation – against the District; (3)
15 Defamation – against the District and NCOE; (4) Whistleblower Retaliation – against
16 both defendants; (5) Due Process – against both defendants; (6) Gender and Age
17 Discrimination under 42 U.S.C. § 1983 – against both defendants; (7) Abuse of
18 Process – against both defendants; and (8) Undue Influence – against the District.
19 ARGUMENT
20 I. Legal Standard Governing Anti-SLAPP Motions
21 In 1992, in response to the “disturbing increase” in meritless lawsuits brought “to

22 chill the valid exercise of the constitutional rights of freedom of speech and petition for

23 the redress of grievances,” the California Legislature overwhelmingly enacted

24 California’s anti-SLAPP law—CCP § 425.16. 4 In 1997, the Legislature amended the

26
4 Subdivision (a) of section 425.16, as amended in 1997, provided: “The Legislature
27 finds and declares that there has been a disturbing increase in lawsuits brought
28
primarily to chill the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances. The Legislature finds and declares that it is in the
public interest to encourage continued participation in matters of public significance.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 anti-SLAPP statute to expressly provide that it “shall be construed broadly.” (CCP §
2 425.16, subd. (a).) This amendment also added subdivision (e)(4) to the statute,
3 making clear that section 425.16 covers any other conduct that furthers protected
4 activity in addition to statements and writings. Ultimately, the purpose of the anti-
5 SLAPP statute is to “weed[ ] out, at an early stage, meritless claims arising from
6 protected activity.” (Baral, supra, 1 Cal.5th at p. 384.)
7 Resolution of an anti-SLAPP motion involves two steps. (Baral, supra, 1 Cal.5th
8 at pp. 384-85.) “First, the defendant must establish that the challenged claim arises
9 from activity protected by section 425.16.” (Ibid., citing Taus v. Loftus (2007) 40 Cal.4th
10 683, 712.) Second, if the defendant makes the required showing, the burden shifts to
11 the plaintiff to demonstrate the merit of the claim by establishing a probability of
12 success on each of the claims. (Ibid.) The courts have described this process as a
13 “summary-judgment-like procedure.” (Taus, supra, 40 Cal.4th at p. 714.) “The plaintiff’s
14 showing must be based upon admissible evidence.” (Litinsky v. Kaplan (2019) 40
15 Cal.App.5th 970, 979-80.) “The court ‘considers the pleadings and evidentiary
16 submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the
17 court does not weigh the credibility or comparative probative strength of competing
18 evidence, it should grant the motion if, as a matter of law, the defendant’s evidence
19 supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for
20 the claim.” (Ibid., citing Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
21 821.)
22 For the reasons set forth below, both prongs of the anti-SLAPP analysis are
23 satisfied in this case—all of Plaintiff’s claims arise from protected activity and Plaintiff
24 cannot establish a probability of prevailing on the claims because, for several reasons,
25 they fail as a matter of law.
26 ///
27

28
That this participation should not be chilled through abuse of the judicial process. To
this end, this section “shall be construed broadly.”

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 II. All of Plaintiff’s Claims Arise From Protected Activity
2 The first step of the anti-SLAPP analysis requires the defendant to make a prima
3 facie showing that Plaintiff’s causes of action arise from protected activity as defined in
4 the statute. (Hicks, supra, 39 Cal.App.5th at p. 1175.) “[The] statute’s definitional focus
5 is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that
6 gives rise to his or her asserted liability—and whether that activity constitutes protected
7 speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [italics in original].)
8 Subdivision (e) of the statute defines the activity protected by the statute as follows:
9 “(1) any written or oral statement or writing made before a legislative, executive, or
10 judicial proceeding, or any other official proceeding authorized by law, (2) any written or
11 oral statement or writing made in connection with an issue under consideration or
12 review by a legislative, executive, or judicial body, or any other official proceeding
13 authorized by law, (3) any written or oral statement or writing made in a place open to
14 the public or a public forum in connection with an issue of public interest, or (4) any
15 other conduct in furtherance of the exercise of the constitutional right of petition or the
16 constitutional right of free speech in connection with a public issue or an issue of public
17 interest.” (CCP § 425.16, subd. (e).)
18 Significantly, the courts have made clear that an investigation into a public
19 employee’s conduct is an official proceeding for purposes of CCP § 425.16, subdivision
20 (e)(1) and (2). (Hansen v. Department of Corrections & Rehabilitation (2008) 171
21 Cal.App.4th 1537, 1544; Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373,
22 1383.) And the Court of Appeal has expressly held that this applies to school
23 employees. (Okorie v. Los Angeles Unified Sch. Dist. (2017) 14 Cal.App.5th 574
24 [holding that school employee’s claims against school district based on speech and
25 communicative conduct regarding an internal investigation of misconduct were barred
26 under the anti-SLAPP law], overruled in part on other grounds in Bonni v. St. Joseph
27 Health System (2021) 11 Cal.5th 995.) In other words, because investigations into
28 public employee misconduct qualify as “official proceedings” within the meaning of the
anti-SLAPP statute, both subdivision (e)(1) and (2) clearly apply in this case.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
12
1 Here, all of Plaintiff’s claims against the District are based on the allegedly
2 wrongful conduct of Superintendent Burkhart (other than the seventh cause of action
3 for abuse of process with is directed at the conduct of the District’s attorney’s in this
4 case). More specifically, Plaintiff alleges that Mr. Burkhart injured him through the
5 following conduct: (1) speaking with the students in class as part of his investigation
6 into Plaintiff’s misconduct; 5 (2) sending the two letters to the NCOE and the
7 Commission on Teacher Credentialing; 6 and (3) making statements to law enforcement
8 that resulted in a criminal investigation. 7 All of Plaintiff’s claims against the District are
9 based on this conduct other than seventh cause of action for abuse of process.
10 Each of Plaintiff’s causes of action emphasize the fact that they are based on
11 protected activity.
12 The first cause of action for malicious prosecution is based on the allegation that
13 “Mr. Burkhart engaged in malicious prosecution by writing his letter to the CTC.” (TAC
14 p. 25:15.) The courts have noted that malicious prosecution claims are subject to the
15 anti-SLAPP statute. (Litinsky v. Kaplan (2019) 40 Cal.App.5th 970.) More importantly,
16 the Court of Appeal has held that a letter concerning a teacher’s misconduct is
17 protected activity under the anti-SLAPP statute. (Hicks v. Richard (2019) 39
18 Cal.App.5th 1167, 1177 [holding that a letter concerning a teacher’s misconduct
19 “implicates issues of public interest” and therefore protected activity under subdivision
20 (e)(4)]; Okorie, supra, 14 Cal.App.5th at p. 593 [holding that statements in a letter by a
21

22 5 In his second cause of action, Plaintiff alleges that “Mr. Burkhart’s conduct with his
23 class on May 8, 2018, in which he encouraged, repeated and elicited additional false
and defamatory accusations against plaintiff for every student to hear, constitutes
24 defamation.” (TAC p. 25.)
6 In paragraph 14 of the TAC, Plaintiff alleges: “Mr. Burkhart thereafter composed two
25
letters dated May 9, 2018 consisting of a mixture of false allegations, partially true (but
26 misleading through is omission or elaboration) allegations, and false innuendo; the true
parts were innocuous and innocent, but his false elaborations thereupon … turned truth
27 into defamatory falsehood….” (TAC ¶ 14.)
7 TAC ¶ 18 [“Mr. Burkhart … instituted a retaliatory criminal investigation against
28
plaintiff, and made false and misleading statements against plaintiff to induce law
enforcement officials to investigate plaintiff.”]

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
13
1 school principal to parents regarding allegations of teacher misconduct were
2 statements made in connection with an “official proceeding” and therefore protected
3 activity under subdivision (e)(1) and (2)].)
4 The second cause of action for defamation is based on the allegation that “Mr.
5 Burkhart’s conduct with his class on May 8, 2018, in which he encouraged, repeated
6 and elicited additional false and defamatory accusations against plaintiff … constitutes
7 defamation.” (TAC p. 25:24-27.) And, both the letters drafted by Mr. Burkhart and his
8 declaration submitted with this motion make clear that his discussions with students
9 about Plaintiff were part of his investigation into the allegations of misconduct. (TAC
10 Ex. K; Burkhart Decl. ¶¶ 5, 12-13, Exhs. A & B.) Again, the courts have made clear that
11 “internal investigations constitute an ‘official proceeding authorized by law,’” under
12 section 425.16, subdivision (e). (Okorie, supra, 14 Cal.App.5th at p. 594, citing Hansen,
13 supra, 171 Cal.App.4th at p. 1544.)
14 The third cause of action is based on “defamatory communications by the
15 employees of both defendants (both within and between defendant entities).” (TAC p.
16 26.) Any statements between the District and NCOE regarding Plaintiff were made as
17 part of the District’s investigation into Plaintiff’s misconduct. As such, the claim is based
18 on protected activity. (Okorie, supra, 14 Cal.App.5th at p. 594 [investigation is
19 protected activity]; Hicks, supra, 39 Cal.App.5th at p. 1177 [letter concerning teacher
20 misconduct was protected activity].)
21 The fourth cause of action for retaliation is based on the allegation that Mr.
22 Burkhart made statements to law enforcement that resulted in a criminal investigation.
23 (TAC ¶ 18 p. 14:1-6.) The Court of Appeal has held that claims based on allegedly
24 false statements to police are subject to an anti-SLAPP motion. (Schaffer v. City &
25 County of San Francisco (2008) 168 Cal.App.4th 992, 999.)
26 The fifth cause of action for deprivation of Procedural Due Process is based on
27 the allegation that Mr. Burkhart conducted his investigation without “any meaningful
28 procedures whatsoever.” (TAC p. 26.) In this regard, the Court of Appeal has made

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
14
1 clear that “if a plaintiff’s complaint arises from [an] investigation … and if the
2 investigation falls within one or more of the four categories of acts protected by the
3 anti-SLAPP statute, defendant has satisfied its initial burden.” (Jeffra v. Cal. State
4 Lottery (2019) 39 Cal.App.5th 471, 482.) This rule applies to Plaintiff’s fifth cause of
5 action in which Plaintiff complains that he was wronged by the investigation and his
6 perception that he was not afforded an opportunity to respond to the allegations.
7 The sixth cause of action is for discrimination under federal law and based on the
8 allegation that, through Mr. Burkhart’s conduct (i.e., the investigation and letters),
9 Plaintiff was treated differently than female employees. (TAC p. 26:24-26.) The case
10 law is clear that the anti-SLAPP statute applies to federal claims as well as state law
11 claims for discrimination and retaliation. (Tichinin v. City of Morgan Hill (2009) 177
12 Cal.App.4th 1049 [applies to federal claims]; Wilson v. Cable News Network (2019) 7
13 Cal.5th 871 [applies to claims of discrimination and retaliation].)
14 The seventh cause of action is for abuse of process and is based on the
15 allegation that “[t]he attorneys of both defendants have abused the legal process as
16 they made claims (in the present matter) known to them to be false, and filed
17 documents known to them to contain false statements.” (TAC p. 27:1-4.) In this regard,
18 California courts, including the California Supreme Court, have held that claims based
19 on a party’s or attorney’s statements or writings in an earlier judicial proceeding are
20 subject to being stricken as a SLAPP suit: “[B]y its terms, section 425.16 potentially
21 may apply to every malicious prosecution action, because every such action arises
22 from an underlying lawsuit, or petition to the judicial branch.” (Jarrow Formulas, Inc. v.
23 LaMarche (2003) 31 Cal.4th 728, 734-35; Chavez v. Mendoza (2001) 94 Cal.App.4th
24 1083, 1087 [anti-SLAPP statute protected attorneys from malicious prosecution action
25 brought against them by parties they had sued on behalf of a client].)
26 Finally, the eighth cause of action for undue influence is based on the allegation
27 that, on May 8, 2018, “Mr. Burkhart used his position of authority to exercise undue
28 influence over his students, whereby they would make or acquiesce to false and

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE
15
1 defamatory allegations against plaintiff.” (TAC p. 27.) In other words, like the second
2 cause of action for defamation, Plaintiff’s undue influence clai

Case Info

Judge

Cynthia Pillsbury Smith Track Judge’s New Case

Case No.

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Document Filed Date

April 08, 2022

Case Filing Date

May 15, 2019

County

Parties

Berry, Charles J Plaintiff
Darmagnac, Kathleen Lynn Attorney for the Defendant
Leone, Louis Anthony Attorney for the Defendant
Napa County Office Of Education Defendant
Pope Valley Elementary Unified School District Defendant
Symonds, Megan M Attorney for the Defendant
Jimmie Johnson Attorneys for Defendants
Timothy Murphy Attorneys for Defendants
Jordan Meyer Attorneys for Defendants
Brian Duus Attorneys for Defendants
Vilma Lopez Attorneys for Defendants

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Document for Charles J Berry vs Pope Valley Elementary Unified School District et al

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