Turnbull v. Lucerne Valley Unified School Dist. ( 2018 )

Filed 6/13/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
DAWN D. TURNBULL,
Plaintiff and Respondent, E067436
v. (Super.Ct.No. CIVDS1605634)
LUCERNE VALLEY UNIFIED OPINION
SCHOOL DISTRICT et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa,
Judge. Affirmed.
Cummings, McClorey, Davis, Acho & Associates and Ryan D. Miller for
Defendant and Appellant.
Law Offices of Robert D. Conaway and Robert D. Conaway for Plaintiff and
Respondent.
Plaintiff and respondent Dawn D. Turnbull sued defendants and appellants the
Lucerne Valley Unified School District (LVUSD), Tom Courtney, Suzette Davis, John
Buchanan, and Keri Gasper. Turnbull brought causes of action for (1) disclosing her
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private medical information (Civ. Code, § 1798.63); (2) invading her privacy (Pen.
Code, § 637.2); (3) interfering with her constitutional rights (Civ. Code, § 52.1, subd.
(b)); (4) violating her civil rights (42 U.S.C.A. § 1983); and (5) conspiring to deprive
her of her right of privacy or right of free speech (42 U.S.C.A § 1985(3)).
LVUSD, Courtney, and Davis brought an anti-SLAPP motion, which the trial
court denied. (Code Civ. Proc., § 425.16.)1 LVUSD, Courtney, and Davis contend the
trial court erred by denying their motion. We affirm the order denying the anti-SLAPP
motion.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
The facts in this subsection are taken from Turnbull’s complaint. Davis is the
superintendent of LVUSD. Turnbull and Courtney were members of the LVUSD
board. Although not explicit, it can be inferred from the complaint that Buchanan was
also a member of the LVUSD board. Gasper was an LVUSD volunteer.
Turnbull opposed Davis’s alleged misappropriation of LVUSD funds. In
retaliation for Turnbull’s opposition, Davis (1) obtained confidential medical
information about Turnbull from Turnbull’s employer; (2) generated false reports from
the California Longitudinal Pupil Achievement Data System (CALPADS), concerning
school lunch program eligibility; and (3) on July 8, 2015, falsely told LVUSD board
members that evidence strongly suggested Turnbull illegally accessed CALPADS.
1
All subsequent statutory references will be to the Code of Civil Procedure
unless otherwise indicated.
2
Shortly after the July 8, 2015, LVUSD board meeting, Courtney and Buchanan, as
private citizens, called Turnbull’s employer to report Turnbull’s allegedly unlawful
access of CALPADS. Turnbull had legally accessed CALPADS to obtain a report
concerning her stepchild.
Courtney used his position as a LVUSD board member to obtain access to
Turnbull’s private medical information. Courtney, as a private citizen, caused
Turnbull’s private medical information to be published on social media or gave the
information to people who published it on social media. Courtney intended to
intimidate Turnbull to stop her from opposing Davis’s acts of misappropriation. Gasper
received Turnbull’s private medical information from Courtney, Davis, or Buchanan.
Gasper published the information on social media.
In Turnbull’s first cause of action, she alleged all of the defendants disclosed her
private medical information, in particular an off-work note from Turnbull’s doctor.
(Civ. Code, § 1798.63.) In the second cause of action, against all of the defendants,
Turnbull alleged the release of her medical off-work note constituted an invasion of
privacy, which led to the loss of her job with Oro Grande Unified School District
(OGSD).
In Turnbull’s third cause of action, she alleged all of the defendants retaliated
against her for a variety of actions including opposing Davis’s misappropriation of
funds. Courtney pressured Turnbull to resign and then threatened to have Turnbull
recalled. Turnbull alleged all of the defendants used their official authority or influence
to intimidate and coerce Turnbull, which ultimately led to Turnbull losing her job at
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OGSD. Additionally, to the extent LVUSD resources were used to retaliate against
Turnbull, that was also wrongful.
In Turnbull’s fourth cause of action, she alleged all of the defendants retaliated
against her for a variety of actions including opposing Davis’s misappropriation of
funds. Turnbull asserted defendants violated her expectation of privacy. Turnbull
alleged she lost her job with OGSD as a result of defendants’ actions.
In the fifth cause of action, Turnbull alleged the superintendent of OGSD
(Griggs) accessed Turnbull’s private medical information and gave it to Davis. Davis
conspired to violate Turnbull’s right of privacy for the purpose of chilling Turnbull’s
exercise of free speech. Turnbull sought general damages, special damages, statutory
damages, punitive damages, attorney’s fees, costs, and any other proper relief.
B. ANTI-SLAPP MOTION
LVUSD, Courtney, and Davis (collectively, defendants) filed an anti-SLAPP
motion. (§ 425.16.) The first issue in an anti-SLAPP analysis is whether the allegations
in the complaint arise from protected activities. Defendants asserted Turnbull’s first
and second causes of action concerned the disclosure of Turnbull’s medical off-work
note. Defendants contended Turnbull’s off-work note was a matter of public interest
because Turnbull failed to attend LVUSD board meetings, and thus, the disclosure
constituted a protected activity.
As to the third cause of action, defendants asserted Turnbull’s allegations
concerned statements and deliberations at LVUSD board meetings, and thus were
protected activities. In regard to the fourth and fifth causes of action, defendants
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asserted no new facts were alleged and therefore the analysis pertaining to the first,
second, and third causes of action also applied to the fourth and fifth causes of action.
The second prong of an anti-SLAPP analysis concerns whether the plaintiff has a
probability of prevailing on the merits of her claims. In regard to the first and second
causes of action, defendants asserted Turnbull could not prevail because defendants
have immunity for discretionary acts. (Gov. Code, § 820.2.) Defendants asserted that
even if they disclosed Turnbull’s medical off-work note to embarrass and humiliate
Turnbull, they would be immune from liability because malicious acts are within their
discretion.
Next, defendants asserted Turnbull could not prevail on her first and second
causes of action because OGSD independently decided to terminate Turnbull’s
employment and the voters in LVUSD independently decided to recall Turnbull.
Therefore, defendants were not the proximate cause of Turnbull’s damages.
Additionally, defendants contended Turnbull could not demonstrate an invasion of
privacy because there is no privacy interest in a medical off-work note, which contains
no medical information.
In regard to the third cause of action, defendants asserted Turnbull could not
prevail because defendants were not the proximate cause of her damages, e.g., OGSD
independently decided to terminate Turnbull’s employment and LVUSD voters
independently decided to recall Turnbull. Next, defendants contended Turnbull could
not demonstrate she was subjected to threats of violence as required for a violation of
Civil Code section 52.1. In regard to the allegation that LVUSD resources were used to
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retaliate against Turnbull, defendants asserted the claim failed because Turnbull failed
to allege what resources, if any, were used.
As to the fourth and fifth causes of action, defendants asserted Turnbull could not
prevail because she lacked standing since defendants did not cause Turnbull’s injury, in
that they did not terminate Turnbull’s employment or recall her board membership.
Next, defendants contended Turnbull could not succeed on her fourth and fifth causes of
action because she failed to allege sufficient facts to support the causes of action.
C. OPPOSITION
Turnbull opposed defendants’ anti-SLAPP motion. Turnbull asserted the anti-
SLAPP motion did not comply with the timing provisions for filing a motion and
therefore should be denied. (§ 425.16, subd. (f).) Turnbull asserted the anti-SLAPP
motion did not comply with the rule requiring the notice of motion to set forth the
nature of the order being sought and the grounds for issuance of the order, and therefore
the motion should be denied. (Cal. Rules of Court, rule 3.1110(a).)
The first prong of anti-SLAPP analysis concerns whether the claims arise from
protected activity. As to the first and second causes of action, Turnbull asserted they
were based upon defendants accessing her medical off-work note, providing the medical
information to the public, calling OGSD to accuse Turnbull of illegally accessing
CALPADS, and having Turnbull removed from an unrelated nonprofit board. Turnbull
contended none of the acts alleged in the first and second causes of action concerned
protected activities because none of the acts were done by defendants in their official
capacities.
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As to the third cause of action, Turnbull argued her claim for retaliation was not
based upon LVUSD board actions. Turnbull contended the retaliation occurred on
social media and in personal telephone calls to OGSD. Turnbull asserted the personal
acts were not protected activities.
The second prong of the anti-SLAPP analysis concerns the plaintiff’s probability
of prevailing. Turnbull contended her allegations did not concern defendants’ acts at
LVUSD board meetings and therefore defendants were not immune from liability. In
regard to the alleged lack of proximate causation, Turnbull asserted her allegations did
not concern the recall. Turnbull alleged Courtney, Davis, and Buchanan, falsely (1) told
OGSD, (2) wrote on social media, and (3) e-mailed a nonprofit that Turnbull illegally
accessed CALPADS. The falsehoods were communicated for the purpose of causing
Turnbull to lose her job with OGSD and her position with the nonprofit board. Turnbull
asserted defendants were the proximate cause of her damages.
Turnbull contended she had an expectation of privacy in the medical off-work
note because it was given to OGSD, i.e., her employer. Turnbull did not expect the note
to be published in the LVUSD area. In regard to insufficient facts in the complaint,
Turnbull contended defendants should have demurred if the facts were insufficient. In
regard to the fourth and fifth causes of action, Turnbull asserted she had standing to
bring the causes of action because defendants were the cause of her harm. Turnbull
explained that defendants caused Turnbull to lose her job with OGSD by falsely telling
OGSD that Turnbull illegally accessed CALPADS.
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D. HEARING
The trial court held a hearing on defendants’ anti-SLAPP motion. Defendants
argued that Turnbull’s illness was matter of public interest because Turnbull failed to
attend LVUSD board meetings. Turnbull asserted her lawsuit did not concern activities
at LVUSD board meetings. Turnbull argued that her job with OGSD was not a matter
of public interest. Turnbull contended defendants fabricated the CALPADS allegation
and communicated the false allegation to OGSD so as to cause Turnbull to lose her job
with OGSD. Turnbull asserted the alleged acts took place in Davis’s and Courtney’s
personal capacities.
Defendants contended private communications concerning matters of public
interest are protected activities. Defendants asserted the alleged acts were within “the
normal realm of dirty politics” and therefore their alleged acts were protected—because
they were political acts. The trial court took the matter under submission.
E. RULING
The trial court found Turnbull’s causes of action arose from “defendants
improperly obtain[ing] her confidential medical information, and ha[ving] that
information disclosed on social media.” The trial court found defendants failed to
demonstrate that Turnbull’s medical information was disclosed during a LVUSD board
meeting or during LVUSD board discussions, or that it was matter of public interest.
As a result, the trial court found defendants failed to prove the alleged acts were
protected activities. The trial court denied defendants’ anti-SLAPP motion.
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DISCUSSION
A. ANTI-SLAPP MOTION
1. LAW AND STANDARD OF REVIEW
The anti-SLAPP statute is designed to “encourage continued participation in
matters of public significance” by stopping lawsuits that would otherwise chill a
person’s public participation due to abuse of the judicial process. (§ 425.16, subd. (a).)
There are two steps to determining if a lawsuit is designed to curb the defendant’s
participation in matters of public significance.
The first step is examining the causes of action to determine if they arise from
any act in furtherance of the defendant’s “right of petition or free speech under the
United States Constitution or the California Constitution in connection with a public
issue.” (§ 425.16, subd. (b).) The second step is determining whether the plaintiff has a
probability of prevailing on her claims. (§ 425.16, subd. (b).) If a cause of action arises
from an act in furtherance of the defendant’s right of petition or free speech and the
plaintiff does not have a probability of prevailing, then the cause of action will be
stricken. (§ 425.16, subd. (b).) We apply the de novo standard of review. (Park v.
Board of Trustees of California State University System (2017) 2 Cal.5th 1057, 1067.)
B. PROTECTED ACTIVITY
1. LAW
An “ ‘act in furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a public issue’ includes . . .
(3) any written or oral statement or writing made in a place open to the public or a
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public forum in connection with an issue of public interest, or (4) 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.”
(§ 425.16, subd. (e).)
“In deciding whether the initial ‘arising from’ requirement is met, a court
considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.’ (§ 425.16, subd. (b).)” (Navellier v. Sletten
(2002) 29 Cal. 4th 82, 89.) “ ‘The mere fact that an action was filed after protected
activity took place does not mean the action arose from that activity for the purposes of
the anti-SLAPP statute. [Citation.] . . . In the anti-SLAPP context, the critical
consideration is whether the cause of action is based on the defendant’s protected free
speech or petitioning activity.’ ” (In re Episcopal Church Cases (2009) 45 Cal. 4th 467,
477.)
2. FIRST AND SECOND CAUSES OF ACTION
a. Contention
Defendants contend Turnbull’s first and second causes of action arise from
protected activity.
Turnbull’s first cause of action is based upon the alleged disclosure of her private
medical information. (Civ. Code, § 1798.63.) Turnbull alleged defendants disclosed
her private medical information for the purpose of embarrassing Turnbull. As a result
of the disclosure, Turnbull missed LVUSD board meetings and lost her job with OGSD.
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Turnbull’s second cause of action is based upon an alleged invasion of privacy.
(Pen. Code, § 637.2.) Turnbull alleged defendants disclosed her private medical
information to embarrass her. As a result of the disclosure, Turnbull was unable to
participate in LVUSD board meetings and lost her job at OGSD. In Turnbull’s general
allegations, she asserts Courtney and/or Davis gave Turnbull’s private medical
information to Gasper, who published the information on social media.
We understand Turnbull’s first and second causes of action as faulting Courtney
and Davis for giving Gasper Turnbull’s medical off-work note. The note written by
Turnbull’s doctor is not a statement or writing made by Courtney or Davis. Further,
defendants do not explain in what environment the note was given to Gasper. For
example, it is unknown if the note was given to Gasper during an LVUSD board
meeting.
Courtney’s declaration was submitted in support of the anti-SLAPP motion. In
Courtney’s declaration he declared Turnbull’s absence from LVUSD board meetings
“was a topic of much conversation during Board meetings,” but “during board meetings
[the board] did not discuss any medical conditions or medical history relating to
[Turnbull].” It is unclear from this evidence if the off-work note was given to Gasper
during an LVUSD board meeting or at another time. Accordingly, it has not been
established that the giving of the note to Gasper is protected as a statement or writing
made in a place open to the public or a public forum. (§ 425.16, subd. (e)(3).)
We now examine whether giving the off-work note to Gasper was an act “in
furtherance of the exercise of the constitutional right of petition or the constitutional
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right of free speech in connection with a public issue or an issue of public interest.”
(§ 425.16, subd. (e)(4).) Defendants fail to explain what, if anything, Gasper wrote on
social media. As a result, it is unclear if Gasper exercised her right of free speech in
connection with a public issue or issue of public importance.
The trial court granted defendants’ request for judicial notice concerning various
online articles about Turnbull’s dispute with Davis and LVUSD board members and her
recall. The trial court explained that the request for judicial notice was granted as to the
existence of the articles, but not as to the truth of the articles’ contents. Thus, the
contents of the articles cannot be used to explain what, if anything, Gasper wrote on
social media. (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal. App. 4th 182, 194.)
In sum, defendants have not explained how giving the off-work note to Gasper
constitutes “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.” (§ 425.16, subd. (e)(4).) Therefore, defendants have not shown the
allegations in the first and second causes of action arise from protected activity.
Defendants contend the first and second causes of action arise from protected
activity because Turnbull’s absence from LVUSD board meetings was a matter of
public interest, as shown by the judicially noticed newspaper articles. Defendants failed
to explain what, if any, comments were made by Gasper. As a result, this court has no
means of knowing whether Gasper made comments that concerned Turnbull’s
attendance at LVUSD board meetings. Because defendants have failed to show there is
a connection between (1) Gasper’s comments, if any; and (2) the alleged issue of public
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importance, defendants have failed to show that the alleged act of giving the note to
Gasper was an act “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.” (§ 425.16, subd. (e)(4).)
3. FOURTH AND FIFTH CAUSES OF ACTION
Defendants contend Turnbull’s fourth and fifth causes of action arise from
protected activity.
Turnbull’s fourth cause of action is based upon a deprivation of her right of
privacy. (42 U.S.C.A. § 1983.) Turnbull alleged Davis accessed Turnbull’s medical
off-work note that was given to OGSD, i.e., Turnbull’s employer. Turnbull’s fifth cause
of action alleges a conspiracy to deprive Turnbull of her right of privacy or right of free
speech. (42 U.S.C.A. § 1985(3).) Turnbull alleges Griggs, the OGSD superintendent,
copied Turnbull’s medical off-work note and gave it to Davis. Griggs gave the note to
Davis for the purpose of intimidating Turnbull into not pursuing her claims that Davis
misappropriated LVUSD funds.
The fourth and fifth causes of action concern Davis accepting the off-work note
from Griggs. The act of accepting a note is not a statement or writing made by Davis.
Additionally, there is no declaration from Davis or Griggs explaining where the note
was given to Davis, assuming the allegation is true. As a result, there is nothing
indicating the note was given to Davis in a place open to the public or in a public forum.
As a result, defendants have not shown Davis’s acceptance of the note is protected as a
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“written or oral statement or writing made in a place open to the public or a public
forum.” (§ 425.16, subd. (e)(3).)
Next, we examine if Davis’s acceptance of the note was “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.” (§ 425.16, subd.
(e)(4).) As set forth ante, the off-work note was allegedly given to Gasper, who
published the information on social media. It is unclear what, if anything, Gasper wrote
on social media. As a result, we do not know if Gasper’s comments related to
Turnbull’s absence from LVUSD board meetings. Therefore, defendants have failed to
establish Davis’s alleged acceptance of the off-work note was conduct in furtherance of
Gasper’s right of free speech in connection with a public issue or issue of public
interest. (§ 425.16, subd. (e)(4).)
Defendants contend Turnbull’s fourth and fifth causes of action arise from
protected activity because the allegations concern conduct that “occurred in a public
forum, by public officials, during public meetings regarding a public matter.”
Defendants do not provide a record citation (Cal. Rules of Court, rule 8.204(a)(1)(C)),
nor do defendants explain what portion of the record reflects Davis accepted the
medical off-work note from Griggs during a public meeting. Accordingly, we find
defendants’ argument to be unpersuasive.
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4. THIRD CAUSE OF ACTION
a. Procedural History
The third cause of action is based upon an alleged violation of Civil Code section
52.1 which prohibits interference “by threat, intimidation, or coercion . . . with the
exercise or enjoyment by any individual . . . of rights secured by the Constitution or
laws of the United States, or of the rights secured by the Constitution or laws of this
state.” (Civ. Code, § 52.1, subd. (a).) The alleged victim may sue the alleged harasser
for civil damages. (Civ. Code, § 52.1, subd. (b).)
In the third cause of action, Turnbull alleged (1) Courtney pressured Turnbull to
resign from the LVUSD board; (2) Courtney threatened to have Turnbull recalled from
the LVUSD board; and (3) Courtney used LVUSD’s resources to support the efforts to
recall Turnbull. Courtney allegedly used LVUSD’s resources in the following manner:
(a) during the July 8, 2015, LVUSD board meeting board members discussed gathering
signatures for the recall; (b) during the September 1, 2015, LVUSD board meeting
board members insisted on proceeding with recall efforts; (c) during the September 15,
2015, LVUSD board meeting Courtney said “that they needed to take steps to stop
Dawn Turnbull which included ‘. . . report[ing] this to the authorities’ going to
[OGSD]”; (d) Courtney and Buchanan telephoned OGSD several times concerning
Turnbull; (e) Courtney posted, on his personal Facebook page, that Turnbull should be
fired from OGSD.
Turnbull alleged that using LVUSD’s resources to support the recall was a
violation of Education Code section 7054, subdivision (a), which provides, “No school
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district . . . funds, services, supplies, or equipment shall be used for the purpose of
urging the support or defeat of any ballot measure or candidate, including, but not
limited to, any candidate for election to the governing board of the district.” The statute
further provides that any violation of the statute “shall be a misdemeanor or felony
punishable by imprisonment in a county jail.” (Educ. Code, § 7054, subd. (c).)
b. Clarifying the Cause of Action
We seek to clarify the basis of Turnbull’s third cause of action. A violation of
Education Code section 7054 is a crime. Therefore, Turnbull is not suing for a violation
of Education Code section 7054 because this case is a civil matter. As a result, the
various ways in which Courtney allegedly used LVUSD resources to support the efforts
to recall Turnbull are not pertinent to the third cause of action.
Civil Code section 52.1 is the legal basis for the third cause of action. Civil Code
section 52.1 concerns interfering with a person’s constitutional rights by threatening,
intimidating, or coercing the person. (Civ. Code, § 52.1, subd. (a).) The alleged acts
associated with Civil Code section 52.1 are (1) Courtney pressured Turnbull to resign
from the LVUSD board, and (2) Courtney threatened to have Turnbull recalled.
Turnbull alleges Courtney pressured and threatened her because Turnbull
objected to various misdeeds by Davis and LVUSD board members, such as (1) gifting
thousands of dollars’ worth of ovens to friends of LVUSD board members; (2) failing to
address missing student lunch funds; and (3) awarding a construction contract to
Courtney’s family business without proper disclosures and recusals.
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c. Analysis
Defendants contend the third cause of action arises from protected activity.
We examine whether the threats and pressure are protected as statements or
writings “made in a place open to the public or a public forum in connection with an
issue of public interest.” (§ 425.16, subd. (e)(3).) It is unclear from the complaint when
and where the threats and pressure allegedly occurred. It is possible that Turnbull is
referring to the release of the medical off-work note as a threat and pressure. In the
general allegations section of the complaint, Turnbull alleges the off-work note was
published on social media for the purpose of intimidating Turnbull. Thus, it is possible
Turnbull is alleging the release of the medical note constituted the pressure and/or
threat.
However, within the third cause of action, Turnbull alleges Courtney “threatened
to recall [Turnbull].” That allegation implies that Courtney made a threat expressly
concerning a potential recall. As a result, it is unclear if Turnbull is asserting the release
of the medical note constituted the pressure and threats. Because the complaint is vague
as to when and where the threats and pressure occurred, it cannot be concluded from the
face of the complaint that the threats and pressure occurred in a place open to the public
or in a public forum.
In Courtney’s declaration, he explains that at the April 15, 2015, LVUSD board
meeting, the board censured Turnbull and voted in favor of requesting Turnbull’s
resignation. It is possible that the April 15 vote constitutes the pressure to resign, in
which case the pressure occurred during an LVUSD board meeting, which means it
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happened in a place open to the public or a public forum. (See Salma v. Capon (2008)
161 Cal. App. 4th 1275, 1286 [using a declaration to understand a vague pleading];
Dowling v. Zimmerman (2001) 85 Cal. App. 4th 1400, 1418-1420 [same].)
Turnbull filed a declaration in opposition to the anti-SLAPP motion. In the
declaration, Turnbull declared, “Defendant[s] by their retaliatory action, calculated to
intimidate me, have violated California Civil Code [section] 52.1(b) as stated in the
complaint.” It is unclear from Turnbull’s declaration when and where the pressure and
threats allegedly occurred.
In Turnbull’s respondent’s brief, when explaining the second prong of the anti-
SLAPP analysis (probability of prevailing), she refers to a threat made by Courtney on
Facebook. Courtney allegedly said he would like to see Turnbull publicly stoned and
that he “could still throw a mean fastball.” It is unclear if this is the threat to have
Turnbull recalled because there is no mention of a recall in the alleged threat. In
Turnbull’s opposition to the anti-SLAPP motion, she asserts defendants retaliated
against her on social media and in personal e-mails.
Turnbull’s third cause of action is vague, which means one can only speculate as
to the basis for the third cause of action. Courtney’s declaration permits speculation
that the “pressure” portion of the third cause of action concerns Courtney’s acts at an
LVUSD board meeting; however, Turnbull’s documents reflect the claim could be
based upon the release of the medical note, posts on social media, and/or personal e-
mails.
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Defendants assert websites open to the public are public forums, and therefore
Facebook posts would be protected activities. Defendants do not cite to evidence
reflecting these particular Facebook pages were open to the public, e.g., defendants do
not provide a record citation to evidence regarding the privacy settings on the pages.
Accordingly, it cannot be concluded that these particular Facebook pages were open to
the public.
Because Courtney does not assert that he only interacted with Turnbull at
LVUSD board meetings or on publicly accessible websites, defendants have not
established that the alleged pressure and threats occurred in a place “open to the public
or a public forum.” (§ 425.16, subd. (e)(3); Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal. 4th 53, 67 [the moving defendant bears the burden of proving
protected activity].) In sum, defendants have not met their burden of establishing the
third cause of action arises from protected activity.
Defendants assert Turnbull’s third cause of action arises from protected activities
because “[e]ach and every factual allegation . . . involves deliberations and statements
made during a Board meeting, by members of the Board.” Defendants cite to
Turnbull’s allegations concerning the alleged misuse of LVUSD board resources (Educ.
Code, § 7054, subd. (c)), which, as explained ante, is not the basis for Turnbull’s third
cause of action.
Further, the alleged misuse of resources took place after the pressure and threats.
Turnbull alleged that she refused to resign despite pressure and threats, and then
Courtney allegedly used LVUSD resources to support the recall effort against Turnbull.
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Specifically, Turnbull alleged, “Courtney pressured [Turnbull] into resigning and when
that failed, threatened to recall [Turnbull] and when that failed, putting [sic] [LVUSD’s]
resources behind recalling [Turnbull] . . . .” Defendants’ argument is not persuasive
because it focuses on what occurred at LVUSD board meetings after the alleged
pressure and threats. Because defendants do not explain why the alleged pressure and
threats constitute protected activity, we find their argument to be unpersuasive.
D. CONCLUSION
Defendants have failed to establish that the allegations in the complaint arise
from protected activities. Accordingly, we do not examine the second prong of the anti-
SLAPP analysis, which is the plaintiff’s probability of prevailing on the merits.
(§ 425.16, subd. (b)(1).)
E. DISMISSAL
Turnbull contends defendants’ appeal should be dismissed because, in the clerk’s
transcript, the trial court’s order denying the anti-SLAPP motion is set forth in a minute
order rather than a signed order, and a signed order is not attached to defendants’
December 13, 2016, notice of appeal. On January 26, 2017, defendants filed an
amended civil case information statement with this court that included a formal order
denying the anti-SLAPP motion. The formal order denying the anti-SLAPP motion was
filed in the trial court on January 23, 2017. On February 6, 2017, this court filed an
order construing defendants’ notice of appeal as being from the formal order dated
January 23, 2017. (Cal. Rules of Court, rule 8.104(d).) In other words, this court has
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already addressed this issue. The error in the lack of formal order has been cured.
Accordingly, we deny Turnbull’s request to dismiss the appeal.
DISPOSITION
The order is affirmed. Respondent is awarded her costs on appeal. (Cal. Rules
of Court, rule 8.278(a).)
CERTIFIED FOR PUBLICATION
MILLER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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