Bell v. Coast Community College Dist. CA4/3 ( 2023 )

Filed 2/16/23 Bell v. Coast Community College Dist. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ANGELA BELL,
Plaintiff and Appellant, G060741
v. (Super. Ct. No. 30-2021-01184221)
COAST COMMUNITY COLLEGE OPINION
DISTRICT,
Defendant and Respondent.
Appeal from an order of the Superior Court of Orange County, Martha K.
Gooding, Judge. Affirmed, and remanded to determine attorney fees and costs.
Alexander Morrison + Fehr, Tracy L. Fehr and Jacqueline Gil, for Plaintiff
and Appellant.
Callahan & Blaine, David J. Darnell and Brett E. Bitzer, for Defendant and
Respondent.
* * *
Angela Bell appeals from an order granting respondent Coast Community
College District’s (District) special motion to strike Bell’s defamation claims pursuant to
Code of Civil Procedure section 425.16 (section 425.16).1 Bell contends the District’s
defamatory statements are not protected under section 425.16 because they were not
made in connection with an issue under review in an official proceeding, such as an
internal investigation. As discussed below, we conclude the alleged defamatory
statements are protected under section 425.16, subdivision (e)(2), as statements made in
connection with an issue under review in an official proceeding. Bell contends she can
demonstrate a probability of success on the merits of her defamation claims. As
discussed below, we conclude she cannot show her defamation claims have minimal
merit because the statements were absolutely privileged under Civil Code section 47 and
Bell has not provided admissible evidence showing any republication occurred.
Accordingly, we affirm the order. We remand the matter to the trial court for a
determination of appellate attorney fees and costs to be awarded to the District.
I
FACTUAL AND PROCEDURAL BACKGROUND
On February 16, 2021, Bell filed a complaint against the District, alleging
multiple causes of action, including a defamation claim and retaliation and discrimination
claims based on an allegedly pretextual investigation and defamation. The complaint
alleged Bell worked for the District for 13 years. After she allegedly “reported and
refused to engage in improper governmental activities and an illegal misuse of public
funds,” the District launched a “retaliatory and pretextual investigation of [Bell]” in June
2019. After a three-month investigation, the District accused Bell of discriminating
against fellow employees based on their sexual orientation. On October 9, 2019, the
District issued Bell “a notice of intent to terminate [her employment] and notice of a
1All further statutory references are to the Code of Civil Procedure unless otherwise
designated.
2
Skelly [(Skelly v. State Personnel Board (1975) 15 Cal.3d. 194) (Skelly)] hearing.” The
complaint alleged that in response to the termination notice, Bell was forced to take early
retirement to protect her earned retirement benefits.
In the defamation cause of action, the complaint alleged that the District
made false statements impugning Bell’s character and professionalism to her former
colleagues and supervisors. Specifically, the District stated Bell unlawfully discriminated
against two District employees by refusing to process reclassification paperwork because
of their sexual orientation. The complaint further alleged that the District “first published
these defamatory statements in or around September and October 2019 and [has] and
continued to republish these statements as of this date.”
On April 19, 2021, the District filed a special motion to strike, among other
claims, the defamation claims pursuant to section 425.16. In the anti-SLAPP motion, the
District argued the defamation claims arose from an internal investigation into the
reasons why Bell refused to process the promotion of two District employees and the
District’s express findings at the conclusion of the investigation that Bell unlawfully
discriminated against the two employees on the basis of sexual orientation. The motion
contended the District’s internal investigation of Bell was protected activity under section
425.16, subdivisions (e)(1) and (e)(2). It further argued that Bell cannot meet her burden
to present admissible evidence establishing a probability that she would prevail on the
defamation claims because the purported defamatory statements are absolutely privileged
by Civil Code section 47.
The anti-SLAPP motion set forth the following chronology of events.
According to the District, Bell was hired in 2007, and one of her duties was to process
promotions or reclassifications of employees. In May 2019, the District’s Board of
Trustees approved the promotion or reclassifications of numerous employees. Bell
processed all promotions or reclassifications, except for two employees, who openly
identified as gay. In response to a complaint about Bell’s refusal to process those two
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reclassifications, the District commenced an internal investigation and retained an outside
firm to assist. Over the next three months, the outside firm reviewed numerous records
and interviewed eight District employees, including Bell twice. The firm produced a 51-
page investigative report, dated September 9, 2019, which was provided to the District
and Bell. The report, attached to the anti-SLAPP motion, noted that Bell provided
inconsistent or unsubstantiated reasons for her refusal to process the two reclassifications,
but “defer[red] to the District and its legal counsel as to whether discriminatory conduct
was found to have occurred.”
On September 11, 2019, the District sent Bell a letter advising her of the
results of the internal investigation and its determination that there was probable cause to
conclude Bell had engaged in unlawful discriminatory conduct based on sexual
orientation in violation of California law and District Policy. On September 30, 2019, the
District provided Bell with a Notice of Proposed Disciplinary Action and Statement of
Charges pursuant to the Education Code and the Board Policy and Administrative
Procedures, based on Bell’s refusal to process the reclassifications of the two gay
employees and “further and subsequent discriminatory conduct” against another
employee in July 2019.
The Notice of Proposed Disciplinary Action informed Bell she had the right
to a predisciplinary or Skelly conference, which was tentatively scheduled for October 9,
2019. According to the District, however, Bell never exercised her right to a Skelly
conference because on October 3, 2019, Bell informed the District she had been placed
on medical leave. Bell never returned from leave and on May 2020, she provided notice
of her intent to retire.
Bell opposed the anti-SLAPP motion, arguing her defamation claims did
not arise from protected activity and she could demonstrate a probability of prevailing on
the claim. Bell asserted her defamation claims “allege[ ] that the reasons given in the
notice of proposed termination were false and defamatory.” She argued the defamatory
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statements were not protected because they were made “after and independent of the
investigation.” Bell further argued she could show her defamation claims had the
requisite minimal merit because the District’s defamatory statements were made “after
the investigation concluded, when no litigation was contemplated, much less imminent.”
In a supporting declaration, Bell denied she refused to process the two reclassifications
because of the employees’ sexual orientation. She asserted that during her tenure with
the District, she processed “innumerable personnel action forms for individuals who
openly identify as gay.” Bell asserted that the defamatory statements have been
republished because based on information and belief her personnel file, which contains a
copy of the District’s Notice of Disciplinary Action, continues to be viewed by
individuals. Additionally, Bell averred, based on information and belief, that the
“District continues to repeat and relay these accusations about me to third parties,
independent of my personnel file.”
In reply, the District argued the alleged defamatory statements were
protected because the statements all arose from the District’s internal investigation. The
District also argued Bell could not show her defamation claims had merit because the
statements are absolutely privileged under Civil Code section 47, since they were made in
connection with the internal investigation. Moreover, according to the District, Bell had
not presented admissible evidence the District republished the defamatory statements
after September 2019. In connection with this argument, the District filed evidentiary
objections to portions of Bell’s declarations that were based on information and belief.
On August 11, 2021, the trial court sustained the District’s evidentiary
objections to the statements in Bell’s declaration based on information and belief. The
court partially granted the District’s special motion to strike. It determined the alleged
defamatory statements were protected because the statements were made in the course of
and in connection with the internal investigation. It further concluded Bell could not
show a probability of success on the defamation claim because the statements were
5
absolutely privileged by Civil Code section 47. It struck the defamation claim and the
defamatory allegations in the retaliation and discrimination claims. However, the court
denied the request to strike the retaliation and discrimination claims to the extent they
were based on the allegedly pretextual investigation.
Bell timely noticed an appeal from the order. Because there was no court
reporter at the hearing on the anti-SLAPP motion, Bell sought approval of a settled
statement, which the trial court denied. Bell subsequently filed a writ of mandate or
prohibition with this court, which we denied because “the only issues identified by
petitioner in the proposed settled statement are reviewed de novo by this court based on
the applicable pleadings.” In her opening brief, Bell argues the trial court abused its
discretion in refusing to certify a settled statement. She claims the error is prejudicial
because she cannot show her defamation claims were not based on the statements made
during the outside firm’s investigation. We find no prejudicial error and we
independently address this argument below.
II
DISCUSSION
The Legislature enacted section 425.16 to provide a procedural remedy to
dispose of meritless “lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances.”
(§ 425.16, subd. (a); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 (Rusheen).)
Litigation of an anti-SLAPP motion involves a two-step process. “At the first step, the
moving defendant bears the burden of identifying all allegations of protected activity, and
the claims for relief supported by them. . . . If the court determines that relief is sought
based on allegations arising from activity protected by the statute, the second step is
reached. There, the burden shifts to the plaintiff to demonstrate that each challenged
claim based on protected activity is legally sufficient and factually substantiated. The
court, without resolving evidentiary conflicts, must determine whether the plaintiff’s
6
showing, if accepted by the trier of fact, would be sufficient to sustain a favorable
judgment. If not, the claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396
(Baral).)
We review de novo the grant of an anti-SLAPP motion. (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) “We exercise
independent judgment in determining whether, based on our own review of the record,
the challenged claims arise from protected activity.” (Ibid.) Moreover, in interpreting
section 425.16, we must construe the statute broadly. (See § 425.16, subd. (a) [“this
section shall be construed broadly”].)
A. The Challenged Statements Are Protected Activity
At the first step of the anti-SLAPP analysis, we must determine whether
Bell’s defamation claims arose from a protected activity. Section 425.16, subdivision
(e)(2) protects “any written or oral statement or writing made in connection with an issue
under consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law.” Bell acknowledges that an internal investigation
qualifies as an “official proceeding authorized by law.” (See Laker v. Board of Trustees
of California State University (2019) 32 Cal.App.5th 745, 765 [“internal investigations
by schools into claims of discrimination qualify as ‘official proceedings authorized by
law’”].) Defamation describes a “quintessential speech activit[y] and thus [is] protected
under section 425.16, subdivision (e)(2) to the extent the speech was made in connection
with [an official proceeding].” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1016 (Bonni).)
Bell’s defamation claims are based on three alleged statements: (1) the
September 11, 2019 letter, wherein the District concluded based on the outside firm’s
investigation, that there was probable cause to find Bell had engaged in discriminatory
conduct; (2) the September 30, 2019 Notice of Proposed Disciplinary Action, wherein the
District charged Bell with engaging in discriminatory conduct in May and July 2019; and
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(3) republication of those prior statements after Bell resigned. As discussed further
below, we conclude the statements are protected activity because they were made in
connection with an issue under consideration or review in an official proceeding.
Bell argues the allegedly defamatory statements in the September 11, 2019
letter and the September 30, 2019 notice are not protected because they were made after
the internal investigation concluded. (See Rand Resources, LLC v. City of Carson (2019)
6 Cal.5th 610, 627 (Rand) [section 425.16, subdivision (e)(2) “appears to contemplate an
ongoing—or, at the very least, immediately pending—official proceeding. Conversely, if
an issue is not presently ‘under consideration or review’ by such authorized bodies, then
no expression—even if related to that issue—could be ‘made in connection with an issue
under consideration or review’”].) However, her argument is based on the outside firm
concluding its investigative work, which unduly constrains the scope of the official
proceeding here.
As the California Supreme Court has explained, a proceeding required by
statute qualifies as ‘“an official proceeding authorized by law’” under section 425.16.
(Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 197.) In its
anti-SLAPP motion, the District asserted Bell’s defamatory claims arose from statements
related to an issue under review in an administrative proceeding or investigation
authorized under the Education Code. Black’s Law Dictionary defines “administrative
proceeding” as “[a] hearing, inquiry, investigation, or trial before an administrative
agency.” (Black’s Law Dictionary (11th ed. 2019).) Here, Education Code section
88013 authorizes the “governing board of a community college district [to] prescribe
written rules and regulations governing the personnel management of the classified
service [employees].” (Ed. Code, § 88013, subd. (a).) It further authorizes the
“governing board [to] adopt rules of procedure for disciplinary proceedings that shall
contain a provision for informing the employee by written notice of the specific charges
against the employee, a statement of the employee’s right to a hearing on those charges,
8
and the time within which the hearing may be requested which shall be not less than five
days after service of the notice to the employee, and a card or paper, the signing and
filing of which shall constitute a demand for hearing, and a denial of all charges.” (Ed.
Code, § 88013, subd. (c).)
Pursuant to the Education Code, the District’s governing board
promulgated Board Policy 7365 and Administrative Procedure 7365. The policy
provides that employees may be disciplined for “[w]illful violation of policies,” including
the District’s antidiscrimination policy. Administrative Procedure 7365 sets forth the
grounds for and types of disciplinary action. It provides: “The District has the option to
notify or not notify employees regarding disciplinary or harassment investigations.” It
further provides for notice of proposed disciplinary action to the employee based on
charges, the right of the employee to a Skelly conference to refute the charges, and appeal
and hearing rights.
The “official proceeding” here is the disciplinary proceeding against Bell
for her alleged discriminatory conduct. The issues under review included whether Bell
engaged in discriminatory conduct and whether her conduct warranted termination. The
September 11, 2019 letter to Bell communicated the District’s determination there was
probable cause to find she engaged in discriminatory conduct based on the outside firm’s
investigation. The September 30, 2019 notice to Bell communicated the District’s
determination that her conduct warranted termination. Thus, the alleged defamatory
statements in the letter and notice were made during the disciplinary proceeding and were
directly connected to issues under review in the disciplinary proceeding. Accordingly,
they are protected under section 425.16. (Cf. Tichinin v. City of Morgan Hill (2009)
177 Cal.App.4th 1049, 1061 [“investigative reports by the Council’s surveillance
subcommittee reports, the Council’s hearing, and subsequent resolution adopted by
Council” are “acts by the City that would qualify for protection under the anti-SLAPP
statute”].)
9
Even if the internal investigation and Skelly meeting are considered
separate proceedings, the letter and notice still qualify as protected under section 425.16.
The September 11, 2019 letter communicated the results of the outside firm’s internal
investigation to Bell. (Cf. Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1397
[concluding section 425.16 applies to the communicative act of denying plaintiff’s
grievances because “[t]he hearing, processing, and deciding of the grievances (as alleged
in the complaint) are meaningless without a communication of the adverse results”]; see
also Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1383 [“the first prong of
section 425.16 is satisfied” where defamation claim based on “City’s investigation into
Miller’s conduct in connection with his public employment and its determination and
report that he had engaged in misconduct on the job”]; Guarino v. County of Siskiyou
(2018) 21 Cal.App.5th 1170, 1181 [“The internal investigation into wrongdoing by
Guarino, which ultimately led to the filing of an accusation against him pursuant to
Government Code section 27641 was an official proceeding authorized by law and thus
any statements made before or in connection with that investigation arose from protected
activity”].)
The September 30, 2019 notice was made in connection with (1) another
investigation, which allegedly revealed Bell engaged in additional discriminatory
conduct, (2) the Skelly conference, or (3) the termination proceeding. The notice thus
was made in connection with an investigation or to initiate another official proceeding,
and thus the allegedly defamatory statements in the notice are protected. (See Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs)
[“‘communications preparatory to or in anticipation of the bringing of an action or other
official proceeding are . . . entitled to the benefits of section 425.16.’ [Citations.]”];
Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537,
1544 [“Although Hansen was never formally charged with misconduct or a crime,
10
communications preparatory to or in anticipation of the bringing of an official proceeding
are within the protection of section 425.16.”].)2
Finally, the republished statements are protected because they were made in
connection with the disciplinary proceeding. Bell argues they are not protected because
they were made well after the proceeding concluded. We disagree. Section 425.16,
subdivision (e)(2), does not expressly limit the “issue under consideration or review . . .
[in] any official proceeding authorized by law.” The language is silent on any time
constraints, and thus, is open to an interpretation that it includes an issue that was under
review in the official proceeding.
Case law supports our interpretation that section 425.16 can protect
statements made after an official proceeding has concluded. In Okorie v. Los Angeles
Unified School Dist. (2017) 14 Cal.App.5th 574, disapproved on other ground by Bonni,
supra, 11 Cal.5th at p. 1012, fn.2, the appellate court concluded that a school district and
its employees’ “statements and communicative conduct both before and after the
molestation investigation” are protected under section 425.16, subdivision (e)(2).3
(Italics added.) Additionally, courts have often looked to Civil Code section 47 to assist
in construing the scope of section 425.16, subdivision (e)(2). (See Flatley v. Mauro
(2006) 39 Cal.4th 299, 322-323 [“Past decisions of this court and the Court of Appeal
2 Nothing in the record suggests the District was limited to conducting a single
investigation into the complaint against Bell.
3 In Bonni, the Supreme Court disapproved Okorie to the extent it struck an entire claim
without parsing out the allegation of protected and unprotected activity in the claim.
(Bonni, supra, 11 Cal.5th at pp. 1010-1011.) In Okorie, the appellate court struck entire
claims that it acknowledges were based on protected and unprotected activity. (Okorie,
supra, 14 Cal.App.5th at p. 592 [“while some of those adverse employment actions
involve arguably unprotected decisions by LAUSD (e.g., removal of Okorie from his
classroom to his home; reassignment of Okorie from his home to ESC, the so-called
teacher’s jail), the bulk of those actions were statements or communicative conduct made
by LAUSD personnel”].)
11
have looked to the litigation privilege as an aid in construing the scope of section 425.16,
subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP
inquiry”].) In Rusheen, supra, the high court found 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, supra, 37 Cal.4th at p. 1057, italics added.)
Bell’s reliance on Rand, supra, 6 Cal.5th 610, is misplaced. There, the high
court addressed a claim for promissory fraud premised on a statement concerning renewal
that a defendant, City Attorney Bill Wynder, “made in 2012, about two years before the
renewal issue even came before the City Council.” (Id. at p. 627.) The high court
determined the statement was not protected activity because it did not involve an issue
under consideration or review in an official proceeding. It explained: “‘[U]nder
consideration or review’ does not mean any issue a legislative body may conceivably
decide to take up months or years in the future.” (Ibid.) Rather, “‘[p]reparatory
communications do not qualify as a protected activity if future litigation is not
anticipated, and is therefore only a “possibility”—and this is true even if the
communication is a necessary prerequisite to any future litigation.’” (Ibid., quoting
Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 703.)
Rand is distinguishable because it involved statements that predate any official
proceeding, whereas here, the challenged statements occurred during or after an official
proceeding. The Rand court never addressed whether statements made in connection
with an issue that was under review is protected. Accordingly, Rand does not support
Bell’s contention that the statements at issue in this case cannot be protected under
section 425.16, subdivision (e)(2).
Because we must construe section 425.16 broadly, we conclude that the
challenged statements are protected because they were made in connection with an issue
that was under review in an official proceeding. The statements form the basis for Bell’s
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defamation claim, and thus the defamation claims arose from protected activity and are
subject to a special motion to strike under section 425.16.
B. Bell Cannot Show Her Defamation Claims Have Minimal Merit
Because the District has shown the defamation claims arose from protected
activity, the burden shifts to Bell to show her claims have minimal merit. (See Cole v.
Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1105 [“plaintiff’s
cause of action needs to have only “‘minimal merit” [citation]’ to survive an anti-SLAPP
motion”].) “To do so, [Bell] must state and substantiate a legally sufficient claim.”
(Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 211.)
“The tort of defamation ‘involves (a) a publication that is (b) false, (c)
defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that
causes special damage.’ [Citation]” (Taus v. Loftus (2007) 40 Cal.4th 683, 720, italics
added.) “‘A plaintiff cannot establish a probability of prevailing if the litigation privilege
precludes the defendant’s liability on the claim.’ [Citation.] The litigation privilege is
defined in Civil Code section 47, subdivision (b) (section 47(b)), and ‘precludes liability
arising from a publication or broadcast made in a judicial proceeding or other official
proceeding.’ [Citation.]” (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236
Cal.App.4th 793, 814, fn. omitted.) The litigation privilege generally applies “to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that
have some connection or logical relation to the action.” (Silberg v. Anderson (1990)
50 Cal.3d 205, 212.) “Many cases have explained that section 47(b) encompasses not
only testimony in court and statements made in pleadings, but also statements made prior
to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate
the feasibility of filing a lawsuit.” (Hagberg v. California Federal Bank (2004)
32 Cal.4th 350, 361.)
13
Here, the statements in the letter and notice that form the basis for Bell’s
defamation claims are absolutely privileged under Civil Code section 47, subdivision (b).
The letter and notice were communications between the parties to the disciplinary
proceeding, the District and Bell, during the proceeding. The September 11, 2019 letter
communicated the District’s determination based on the outside firm’s investigation and
furthered the objective of the disciplinary action by concluding there was probable cause
to find Bell had engaged in discriminatory conduct warranting discipline. The September
30, 2019 notice furthered the objective of the disciplinary action by providing notice of
the proposed disciplinary action and the basis for the discipline and by informing Bell
about her procedural rights to challenge the charges in a Skelly meeting.
Even if the investigation and Skelly meeting are viewed as separate
proceedings, the statements in the letter and notice would be privileged because they
either were communications made in connection with the internal investigations into the
complaint against Bell or were communications preparatory to and in anticipation of
initiating an official proceeding. (See Briggs, supra, 19 Cal.4th at p. 1115
[“‘communications preparatory to or in anticipation of the bringing of an action or other
official proceeding are within the protection of the litigation privilege . . .’ [Citation.]”].)
Moreover, an official proceeding was contemplated in good faith and under serious
consideration when the District sent the letter and notice. (See Action Apartment Assn.,
Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 [“A prelitigation
communication is privileged only when it relates to litigation that is contemplated in
good faith and under serious consideration”].) In the September 11, 2019 letter, the
District expressly informed Bell that it was preparing for the “next steps” in the
disciplinary action. Based on Administrative Policy 7365, the next steps would include
the notice of proposed disciplinary action and the Skelly conference. When the
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September 30, 2019 notice was sent to Bell, the District had scheduled the Skelly
conference.4
As to the alleged republication of the letter and notice or their contents, we
conclude Bell has not substantiated that republication occurred. Bell’s sole evidence that
the statements were republished is her averments in her declaration, which are based on
information and belief. However, “[a]n averment on information and belief is
inadmissible at trial, and thus cannot show a probability of prevailing on the claim.”
(Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1498.) Thus, Bell has not met her burden
to show the defamation claim is “legally sufficient and factually substantiated.” (Baral,
supra, 1 Cal.5th at p. 396.) Accordingly, the trial court properly granted the District’s
special motion to strike the defamation claims.
4 We reject Bell’s contention that the litigation privilege here can be defeated with a
showing of malice. That malice exception applies to the litigation privilege under Civil
Code section 47, subdivision (c). The litigation privilege here is for statements made in
the course of an official proceeding under Civil Code section 47, subdivision (b). “For
policy reasons, even an act committed fraudulently or with malice is privileged under
section 47, subdivision (b).” (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 135, italics
added.)
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III
DISPOSITION
The trial court’s order partially granting the District’s special motion to
strike pursuant to section 425.16 is affirmed. The District shall recover costs and
attorney fees incurred on appeal, in an amount to be determined by the trial court.
DELANEY, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
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