Date: 10-24-2019

Case Style:

Case Number: D074274

Judge: McConnell, P.J.

Court: California Court of Appeals Fourth Appellate District, Division One on appeal from the Superior Court, City and County of San Diego

Plaintiff's Attorney: Maria C. Roberts, Michael W. Healy and Rupa G. Singh

Defendant's Attorney: William W. Bloch

Description: Damian Richard appeals from an order denying in part his special motion to strike
Alan Hicks's complaint for defamation and intentional infliction of emotional distress.
2
The complaint arose from Richard's role in prompting the Diocese of San Diego
(Diocese) to remove Hicks from his school principal position.1
Richard contends we must reverse the part of the court's order denying his antiSLAPP
motion because, among other reasons, the court erred in deciding the common
interest privilege did not apply to bar Hicks's claims. We agree with this contention.
Accordingly, we reverse the order and remand the matter to the court with directions to
vacate the order, to enter a new order granting the motion and striking Hicks's complaint,
and to determine the amount of attorney fees and costs to award Richard under section
425.16, subdivision (c)(1).
II
BACKGROUND
A
1
Hicks was a principal of a Catholic elementary and middle school. Richard was
the husband of one the school's teachers and a parent of children who attended the school.
1 The motion was filed under Code of Civil Procedure section 425.16. (Further
undesignated statutory references are also to this code.) Section 425.16 applies to
Strategic Litigation Against Public Participation (SLAPP)—litigation intended primarily
to chill a person's exercise of constitutionally protected free speech or petition activity.
(FilmOn.com v. DoubleVerify, Inc. (2019) 7 Cal.5th 133, 143 (FilmOn).) Section 425.16
is commonly known as the anti-SLAPP statute and a motion brought under section
425.16 is commonly referred to as an anti-SLAPP motion. (E.g., FilmOn, at pp. 139–
140.)
3
According to Richard, Hicks asked Richard to serve on the school's advisory board
for the 2015-2016 school year. At an advisory board meeting in the fall of that school
year, Hicks informed the advisory board he wanted to allow the producers of a television
show to film the show on the school's campus. Richard expressed his belief the school
should not be affiliated with the show because the show was intended for mature
audiences due to its sexual nature and conduct.
At a fundraiser in the spring of that same school year, Hicks revisited the topic
with Richard. During their discussion, Hicks said he had previously permitted a
motorcycle dealership to use the school's campus for a photoshoot and had received
complaints because of the pornographic nature of the photographs taken.
Later in the summer, Hicks asked Richard to serve as the chair of the advisory
board for the 2016-2017 school year and Richard accepted the post. In that role and
during that school year, Richard received complaints from parents, teachers, and other
board members about Hicks. The complaints included concerns about Hicks's poor
leadership, mismanagement of the school, frequent inappropriate comments to and about
students and female staff, and advocacy for a curriculum Richard and other parents did
not believe was in the best interest of the students or the school.
In the winter of the 2016-2017 school year, the advisory board investigated the
complaints, which were corroborated by employees and parents. Richard and the other
parents, referring to themselves as "Members of the 2016-2017 Advisory Board," sent a
letter and a chart discussing the information they received to the bishop of the Diocese,
4
the Diocese's director for schools, and a bishop with the Archdiocese of Los Angeles who
was also the president of one of the school's accrediting organizations.
The letter faulted Hicks in four areas. First, the letter stated Hicks was not
following the protocols of the school's accrediting organizations. Specifically, the letter
stated in the spring of 2016, during a post-accreditation meeting of the school's advisory
board, Hicks repeatedly refused to disclose the accrediting organizations' report. Hicks
also had not convened another advisory board meeting in the subsequent 10 months,
contrary to the collaborative approach recommended by and promised to the accrediting
organizations.
Second, the letter alleged Hicks made inappropriate comments, created a hostile
work environment, and exercised poor judgment. As examples of making inappropriate
comments and creating a hostile work environment, the letter stated Hicks "recently made
the following statements in the presence of female faculty members at the School, and in
some instances, either in front of children or toward children: 'she's like a dog;' 'nice
legs;' 'look at her hips;' 'I don't give a shit;' 'he looks like [a] pervert (directed at an
elementary student);' 'you are too fat to be a model (directed at a middle school girl),' and
'it is a shame you are having a girl (stated twice, directed at a pregnant staff member, and
stated in the presence of female School employees).' " The letter also stated Hicks had
commented on a female teacher's breast size in the presence of another teacher and had
stated his hiring philosophy consisted of hiring attractive female teachers.
As examples of exercising poor judgment, Hicks purportedly required a group of
middle school boys to receive a period of instruction from him on the topic of
5
masturbation without first notifying and obtaining parental approval. He also discharged
a physical education teacher because she refused to act more submissive to him. Then,
he falsely suggested to parents and other teachers that she was mentally unstable.
In addition, he allowed a local motorcycle dealership to use the school's campus to
film and photograph bikini-clad women while school children were present for summer
camp. Copies of some of the photographs were appended to the letter. When a female
staff member complained about the matter to parish and Diocese officials, Hicks
discharged her.
Third, the letter alleged the school's academic standards were declining under
Hicks's leadership because he required teachers to emphasize instruction in literature, art,
music, and poetry and deemphasize instruction in science and math. The letter further
lamented Hicks's failure to release recent standardized test scores to parents and noted
past standardized test scores showed math deficiencies. The letter also claimed Hicks did
not conduct teacher evaluations and professional development consisted of "requiring the
faculty to read poetry, watch ballet, and listen to classical music for hours on end." The
letter additionally claimed, "Hicks administers by intimidation, causing a general lack of
communication among teachers and parents" and "students with special needs are often
not identified formally or properly and teachers and their aids are often unaware of such
needs."
Fourth and finally, the letter asserted Hicks was not properly addressing bullying,
abuse, and child safety issues at the school. The letter stated teachers, students, and
parents had noticed an increase in unaddressed bullying and student-to-student physical
6
contact, including recent incidents of one second grade student repeatedly striking
another second grade student and later the same week choking yet another student. The
letter also recounted an unaddressed incident in which a teacher sat on top of a second
grade student as a form of punishment.
The letter then referenced allegations of child abuse committed by priests at a
former school where Hicks was headmaster, indicating "it is important to mention them
here because similar patterns of inaction and indolence with [Hicks's] leadership are
surfacing." The letter included a footnote directing the letter's recipients to Internet
sources of information about the allegations and Hicks's purported role in failing to
protect the children at the school.
The Diocese investigated the information. After its investigation, the Diocese
removed Hicks from his position as principal.
2
According to Hicks, he had been the principal of the school for almost 10 years
before he was discharged. During that time, the parish priest who hired him and oversaw
the school indicated numerous times he was doing a superior job. In addition, the chair
of the accreditation committee that visited the school in the winter of 2016 described the
school as having a positive and enriching environment, noted the school community had
nothing but good to say about Hicks, and found widespread satisfaction among the
school's teachers with the workplace, the administration, and the school's progress. Four
months later, one of the Diocese's financial auditors referred to the school as a model
school.
7
Hicks contends the letterhead used to convey the allegations to the Diocese, which
referenced a school advisory board, was self-created and fake.
Hicks believes the letter was motivated by malice because Richard's wife, who
was a first-year teacher at the school during the 2016-2017 school year, had problems
with the mentors Hicks had assigned to help and mentor her in the classroom.2
B
Hicks sued Richard alleging claims for defamation and intentional infliction of
emotional distress. As factual support for these claims, Hicks alleged Richard falsely
stated in the letter that:
1. Hicks remarked to children, or in the presence of children and female
faculty members, "she's like a dog"; "look at her hips"; "I don't give a shit"; "he [an
elementary school student] looks like [a] pervert"; and "you [a female middle school
student] are too fat to be a model."
2. Hicks required a group of middle school males to be instructed by him
about masturbation.
3. Hicks approved the use of school property as a setting for a photo shoot of
bikini-clad women on motorcycles and fired a female staff member who complained
about the activity to parish and Diocesan officials.
2 Hicks's complaint did not reference Richard's wife's difficulties in its allegations of
malice.
8
4. Hicks lowered the school's academic standards by trying to reduce math
and science instruction.
C
Richard filed an anti-SLAPP motion, asserting Hicks's complaint arose out of
conduct in furtherance of Richard's right of free speech in connection with a public issue
and Hicks could not show a probability of prevailing on the merits of his claims. Hicks
opposed the motion, arguing the converse.
The court granted the anti-SLAPP motion in part and denied it in part. The court
found Richard established Hicks's claims against Richard arose from constitutionally
protected free speech in connection with a public issue or an issue of public interest.
(§ 425.16, subd. (e)(4).) However, the court found Hicks had established minimal merit
to his claims to the extent they were based on allegations Hicks made inappropriate
remarks to students and female staff members, discussed masturbation with male
students, allowed a motorcycle store to conduct a salacious photo shoot on school
premises, and was principal of a boarding school at a time when priests were alleged to
have sexually abused students.3 The court further found Hicks had established minimal
merit to his claim the common interest privilege did not apply by supplying evidence
Richard's wife was having employment issues as a teacher at the school and,
3 Hicks's complaint did not reference the boarding school statements as a basis for
either of its causes of action.
9
consequently, the letter may have been motivated by Richard's hatred or ill will toward
Hicks.4
III
DISCUSSION
A plaintiff's claim against a defendant is subject to an anti-SLAPP motion if the
claim arises from the defendant's act in furtherance of the defendant's federal or state
constitutional right of petition or free speech in connection with a public issue and the
plaintiff has not established a probability of prevailing on the claim. (§ 425.16, subd.
(b)(1).) We review an order granting or denying an anti-SLAPP motion de novo.
(Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
Resolution of an anti-SLAPP motion "involves a two-step process. First, the
moving defendant must make a prima facie showing 'that the act or acts of which the
plaintiff complains were taken "in furtherance of the [defendant]'s right of petition or free
speech under the United States or California Constitution in connection with a public
issue," as defined in the statute.' [Citation.] If the defendant makes this initial showing
of protected activity, the burden shifts to the plaintiff at the second step to establish a
probability it will prevail on the claim. [Citation.] The plaintiff need only state and
substantiate a legally sufficient claim. [Citation.] The plaintiff's evidence is accepted as
true; the defendant's evidence is evaluated to determine if it defeats the plaintiff's
4 As Hicks did not appeal the court's decision, the only issues before us in this
appeal are those related to statements for which the court denied Richard's anti-SLAPP
motion. (See Taus v. Loftus (2007) 40 Cal.4th 683, 711–712 (Taus).)
10
showing as a matter of law. [Citation.] The procedure is meant to prevent abusive
SLAPP suits, while allowing 'claims with the requisite minimal merit [to] proceed.' "
(City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420; see Barry v. State Bar of
California (2017) 2 Cal.5th 318, 321.)
A
Regarding the first step of the anti-SLAPP motion analysis, the parties dispute
whether the letter was "conduct in furtherance of the exercise of ... the constitutional right
of free speech in connection with a public issue or an issue of public interest." (§ 425.16,
subd. (e)(4).) Resolving this dispute requires a two-part analysis. "First, we ask what
'public issue or [ ] issue of public interest' the speech in question implicates—a question
we answer by looking to the content of the speech. (§ 425.16, subd. (e)(4).) Second, we
ask what functional relationship exists between the speech and the public conversation
about some matter of public interest." (FilmOn, supra, 7 Cal.5th at pp. 149–150.)5
There must be " 'some degree of closeness' between the challenged statements and
the asserted public interest." (FilmOn, supra, 7 Cal.5th at p. 150.) " '[I]t is not enough
that the statement refer to a subject of widespread public interest; the statement must in
some manner itself contribute to the public debate.' " (Ibid.) "We are not concerned with
the social utility of the speech at issue, or the degree to which it propelled the
conversation in any particular direction; rather, we examine whether a defendant—
5 Although the California Supreme Court decided FilmOn after this appeal was fully
briefed, the parties both submitted letters analyzing the case and inviting us to apply it to
this appeal.
11
through public or private speech or conduct—participated in, or furthered, the discourse
that makes an issue one of public interest." (Id. at p. 151.) In conducting this
examination we consider "context—including audience, speaker, and purpose." (Id. at p.
152.)
Here, there is little question the letter implicates issues of public interest, including
providing school children with an appropriate education and protecting them and school
employees from abuse, bullying, and harassment. (See, e.g., Grenier v. Taylor (2015)
234 Cal.App.4th 471, 483 [character and fitness of a church leader is a matter of public
interest within the church community]; Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 465–468 [child safety and suitability of adults
working with children are matters of public interest]; Terry v. Davis Community Church
(2005) 131 Cal.App.4th 1534, 1547–1548 (Terry) [protecting children from predators and
protecting children in church youth programs are matters of public interest].) Instead, the
crux of the parties' dispute at this step of the anti-SLAPP motion analysis is whether the
letter contributed to the public debate, or furthered the discourse, on these issues. We
think it did.
The letter was the result of an inquiry conducted by concerned parents,
irrespective of their status as a school advisory body. The letter was transmitted to
authorities outside the school and the local parish, namely the bishop of the Diocese, the
Diocese's director of schools, and the bishop of the Archdiocese of Los Angeles who was
also the president of one of the school's accrediting organizations. The letter was
intended to prompt these outside authorities to investigate and act on the allegations
12
contained within it. The letter ultimately served this purpose, although the parties dispute
the appropriateness of the outcome. Accordingly, we conclude the letter was protected
activity under subdivision (e)(4) of the anti-SLAPP statute. (See Terry, supra, 131
Cal.App.4th at p. 1546 ["subdivision (e)(4) applies to private communications concerning
issues of public interest"].)
B
Regarding the second step of the anti-SLAPP motion analysis, Hicks's burden was
similar to that of a party opposing a motion for summary judgment. He had to
demonstrate his claims were both legally sufficient and supported by evidence that, if
credited, would be sufficient to sustain a favorable judgment. (Summit Bank v. Rogers
(2012) 206 Cal.App.4th 669, 695.) Richard asserts Hicks did not and cannot meet this
burden because, among other reasons, the common interest privilege applies to the letter.
Hicks asserts the common interest privilege does not apply because Richard acted with
malice when he made the statements in the letter. We agree with Richard.
The common interest privilege applies to a communication made without malice
to a person interested in the communication's subject matter by another person also
interested in the communication's subject matter. (Civ. Code, § 47, subd. (c)(1).)
"Ordinarily, the common interest of the members of a church in church matters is
sufficient to give rise to a qualified privilege to communications between members on
subjects relating to the church's interest." (Brewer v. Second Baptist Church (1948) 32
Cal.2d 791, 796 (Brewer).) This reasoning applies by analogy to communications
between parents of parochial school children and church authorities overseeing the school
13
on subjects relating to the school. (See Rest.2d Torts, § 596 ["The common interest of
members of religious, fraternal, charitable or other non-profit associations, whether
incorporated or unincorporated, is recognized as sufficient to support a privilege for
communications among themselves concerning the qualifications of the officers and
members and their participation in the activities of the society"].) Thus, the common
interest privilege applies to the statements in the letter unless the statements were made
with malice. (Brewer, at p. 797; Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 740
(Hailstone) [if malice is shown, the common interest privilege never arises; if malice is
not shown, the privilege is a complete defense to all torts except malicious prosecution];
Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368–1369 (Noel)
[same].)
The malice required to defeat the common interest privilege is actual malice.
(Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 336.) Such malice cannot be
inferred from the letter itself. (Hailstone, supra, 169 Cal.App.4th at p. 740; Civ. Code,
§ 48.) Rather, Hicks had to show either that the letter was motivated by Richard's hatred
or ill will toward Hicks or that Richard lacked reasonable grounds for believing the truth
of the statements in the letter. (Kachlon, at p. 336; Noel, supra, 113 Cal.App.4th at p.
1370.)
Here, Hicks sought to show the letter was motivated by Richard's hatred or ill will
toward him by producing e-mail evidence indicating Richard's wife was experiencing
problems with her employment as a teacher at the school. While this evidence may tend
to show Richard disliked Hicks, it is not sufficient by itself to show the statements in the
14
letter were made with malice. (See Taus, supra, 40 Cal.4th at p. 721 [defendant's
acknowledged displeasure with an ethical complaint plaintiff filed against defendant is
not sufficient to show defendant acted with malice in making challenged statements about
plaintiff]; Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 248 (Reader's
Digest) [mere proof of ill will on the part of the person making statements may not be
sufficient to raise a triable issue of material fact on the question of whether the person
made the statements with malice]; Christian Research Institute v. Alnor (2007) 148
Cal.App.4th 71, 85 (Christian Research) [same].)
"A court may consider a defendant's anger or hostility toward a plaintiff in
determining the presence of malice only to the extent it impacts the defendant's actual
belief concerning the truthfulness of the publication. [Citation.] The focus is thus on the
' "defendant's attitude toward the truth or falsity of the material published ... [not] the
defendant's attitude toward the plaintiff." ' " (Christian Research, supra, 148 Cal.App.4th
p. 92, citing and quoting Reader's Digest, supra, 37 Cal.3d at pp. 257, 258; Live Oak
Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1292 [a defendant's ill will
toward a plaintiff is not itself "actual malice"; "actual malice" requires a link between the
defendant's ill will and the defendant's awareness of the probable falsity of the challenged
statements].)
Here, Hicks has not provided any evidence linking Richard's alleged ill will
toward Hicks and Richard's belief about the truth of the statements in the letter. There is
no evidence Richard was openly hostile to Hicks, threatened retaliation, or engaged in
similar vengeful conduct. (See, e.g., Brewer, supra, 32 Cal.2d at pp. 798–799; Mamou v.
15
Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 729–731.) There is also no
evidence Richard disbelieved or had reason to disbelieve any of the statements in the
letter. (See Reader's Digest, supra, 37 Cal.3d 244, 257–258 [malice requires some
evidence of failure to investigate, anger and hostility toward the plaintiff, use of
unreliable or biased sources, or similar conduct indicating the person making the
statements had serious doubts about their truth]; Christian Research, supra, 148
Cal.App.4th at pp. 84–85 [same]; Emde v. San Joaquin County Cent. Labor Council
(1943) 23 Cal.2d 146, 161 [no evidence statements were made with malice when the
statements furthered a legitimate purpose and there was no indication the party who made
the statements disbelieved them].)
Likewise, there is no indication of malice in the tenor or manner in which the
statements in the letter were made. (Brewer, supra, 32 Cal.2d at p. 799 [the tenor of a
statement may be evidence of malice and the manner of a statement may be evidence of
malice if the facts the defendant believed to be true were exaggerated, overdrawn, or
colored to plaintiff's detriment]; Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d
704, 714 [the language of a statement may be evidence of the motive of the person
making the statement].) The letter was written in a businesslike manner and the
statements within it were supported by a chart specifying Hicks's concerning remarks or
behavior, when the remarks or behavior occurred, who witnessed the remarks or
16
behavior, and a means for contacting the witness(es).6 Further, the statements in the
letter regarding the conduct occurring at the out-of-state school where Hicks previously
worked were supported by quotes from and Web site locations for articles about the
conduct and Hicks's role in failing to prevent or address it.
Absent evidence Richard acted with malice, Hicks cannot establish the common
interest privilege did not apply to the statements in the letter. Consequently, he cannot
establish a probability of prevailing on the merits of his claims and the court should have
granted Richard's anti-SLAPP motion in full.
Given the preceding conclusions, we need not decide the remaining issues raised
or alluded to on appeal, including whether Hicks can establish the statements in the letter
were false, whether certain of Hicks's claims are barred by the federal Communications
Decency Act of 1996 (see 47 U.S.C., § 230), whether the court erred in its rulings on the
parties' evidentiary objections, and whether the parties had forfeited appellate review of
any claims or contentions. We also need not decide Richard's opposed motion for
judicial notice.

Outcome: The order is reversed. The matter is remanded to the superior court with
directions to vacate its order granting in part and denying in part Richard's anti-SLAPP 6 The witnesses' names and contact information were redacted from the copy of the chart included in the record. Nonetheless, we were able to determine from the copy of the chart that the chart included this information.

Plaintiff's Experts:

Defendant's Experts:

Comments: