Opinion
A165592
10-10-2023
CHARLES J. BERRY, Plaintiff and Appellant, v. POPE VALLEY UNION ELEMENTARY SCHOOL DISTRICT et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 19CV000733
Rodriguez, J.
Charles Berry, representing himself, filed an amended complaint against Pope Valley Union Elementary School District (District) and Napa County Office of Education (NCOE, collectively defendants), alleging defamation, procedural due process, and equal protection claims, among others, arising out of his termination as a substitute teacher. Defendants moved to strike the claims under Code of Civil Procedure section 425.16 - the anti-SLAPP statute - arguing the claims arise from activity in furtherance of defendants' protected speech.
Undesignated statutory references are to the Code of Civil Procedure.
The trial court granted the District's motion in its entirety and awarded it attorney fees. (§ 425.16, subd. (c).) The court granted NCOE's motion in part, striking all claims except for a whistleblower retaliation claim, and it awarded NCOE attorney fees. The court denied Berry's request to add a disparate gender treatment claim because he had abandoned it in an earlier complaint. The court entered a judgment in favor of the District.
On appeal, Berry challenges the trial court's order striking his claims, awarding attorney fees, and denying his motion to amend his complaint. We reverse the portion of the order striking Berry's procedural due process and equal protection claims, as well as the award of attorney fees, but otherwise affirm.
While this case was being briefed, Berry filed requests for judicial notice of several documents, and we deferred a ruling until the merits of the appeal. We now deny Berry's request to take judicial notice of two online news articles and screenshots of documents related to the Commission on Teacher Credentialing (Commission) because they were not offered in the trial court below and, in any event, do not bear on our analysis. (People v. Preslie (1977) 70 Cal.App.3d 486, 493; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) We also deny Berry's request to take judicial notice of his third amended complaint and declaration, both of which are already part of the record on appeal.
The history of this appeal is set forth in this court's prior opinion, which we incorporate here by reference. (Berry v. Pope Valley Union Elementary School District (Sept. 16, 2021, A160256) [nonpub. opn.] (Berry).) We briefly summarize the facts here and provide further relevant details in the discussion section.
Berry served as a substitute teacher in the District in 2018. Kenneth Burkhart, the District's principal and superintendent, received complaints from several middle school students regarding Berry's comments in class - positive comments about Adolf Hitler (that Hitler was a "decent artist" and "excellent orator") and asking whether a student was looking at pornography on his laptop. In addition, a female school staff member reported Berry made her feel uncomfortable by making comments about her physical appearance. On another occasion, Berry arrived 30 minutes late to class, wearing gym shorts and a t-shirt, which Burkhart deemed inappropriate attire.
Burkhart initiated an investigation of Berry by interviewing students in the presence of another school employee. As part of the investigation, Berry was interviewed by a former principal and superintendent regarding his alleged misconduct. Berry reported the students were disrespectful, refused to work, and they stormed out of the class. The former principal opined Berry had lost control of the class and should not return to the school as a substitute teacher.
On May 8, 2018, NCOE notified the four Napa County school districts within its jurisdiction, "Effective immediately, place Substitute Teacher, Charles Berry, INACTIVE - until further notice." The next day, Burkhart wrote a letter to the NCOE and the Commission about Berry's conduct and advising them the District was not an appropriate place for Berry to provide substitute teaching services. He requested the Commission review his findings to determine the need for further investigation. On May 10, NCOE informed Berry "we are inactivating you as a Substitute Teacher effective immediately as you have been considered not a good fit for our schools and students." After reviewing his file, the Commission closed its investigation and recommended no adverse action at that time. NCOE and the District nonetheless did not reactivate his substitute teacher status.
In November 2018, Berry filed a government tort claim (Gov. Code, § 810 et seq.) against the District, alleging he suffered from depression and other conditions. Upon receiving a copy of the claim, the school board voiced concerns about student safety if Berry returned to the District as a substitute teacher. On that basis, Burkhart contacted a deputy at the Napa County Sheriff's office. Burkhart did not have further contact with law enforcement beyond that initial call.
Berry filed a complaint against defendants, alleging a gender discrimination claim under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq., FEHA) as well as other tort claims. The trial court sustained defendants' demurrer and ultimately dismissed the complaint. (Berry, supra, A160256.) This court reversed the judgment as to the gender discrimination cause of action and ordered Berry to be given the opportunity to amend his complaint to add new causes of action, but otherwise affirmed the court's order. (Ibid.) In addition, this court noted Berry was entitled to recover his costs on appeal. (Ibid.) Although Berry submitted those costs to the trial court, it has not yet ruled on his request.
In February 2022, Berry filed an amended complaint based on the same factual allegations in his prior complaint, alleging claims of malicious prosecution and undue influence against the District, as well as defamation, whistleblower retaliation, due process violations, equal protection violations under 42 United States Code section 1983, and abuse of process against defendants. Berry, however, did not allege defendants engaged in gender discrimination under FEHA.
Defendants moved to strike the claims under the anti-SLAPP statute, arguing each arises out of written and oral communications made during an official proceeding. (§ 425.16, subd. (e).) The trial court agreed with the District, struck Berry's entire complaint, and awarded it $8,507 in attorney fees. The court partially agreed with NCOE, struck all but the whistleblower retaliation claim, ordered Berry to file an amended complaint, and awarded NCOE $5,494.50 in attorney fees.
In June 2022, the District moved to dismiss the complaint. Berry filed a motion for leave to file a fourth amended complaint to include a gender treatment claim against defendants - the same claim Berry failed to include in his third amended complaint following this court's prior decision. The trial court denied his motion and granted the District's motion to dismiss the complaint with prejudice.
DISCUSSION
Berry makes a series of arguments challenging the trial court's orders regarding defendants' motions to strike, the award of attorney fees, and the denial of his motion to amend his complaint. We address each below.
Berry's notice of appeal only identifies the order granting in part and denying in part defendants' motion to strike. But we liberally construe the notice of appeal as including an appeal from the judgment dismissing Barry's complaint. (Luz v. Lopes (1960) 55 Cal.2d 54, 59.) There is no evidence the District was misled or prejudiced by the notice of appeal, and the District has briefed the issues. (Ibid.)
I.
The anti-SLAPP statute authorizes a defendant to seek dismissal of "certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity." (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420-1421; § 425.16, subd. (a).) Resolving an anti-SLAPP motion involves two steps. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The defendant must demonstrate the challenged claim arises out of "acts in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue" - the first step. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186.) The trial court must consider the elements of the challenged claim and the defendant's actions that supply those elements forming the basis for liability. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).)
Upon making this showing, the burden shifts to the plaintiff to demonstrate a probability of success on the merits - the second step. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) Rather than weighing the evidence or resolving conflicting factual claims, the trial court simply accepts plaintiff's evidence as true and determines whether "the plaintiff has stated a legally sufficient claim and made a prima facie factual showing" sufficient for a favorable judgment. (Id. at pp. 384-385.) Striking the claim is proper where a necessary element of the claim is absent. (Citizens of Humanity, LLC v. Hass (2020) 46 Cal.App.5th 589, 598.) "If the plaintiff fails to meet the second-step burden, the court will strike the claim." (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763.) We review de novo the court's ruling on an anti-SLAPP motion.[ ] (Ibid.)
We reject Berry's argument that the trial court did not consider a declaration he belatedly submitted in opposition to defendants' anti-SLAPP motion. He argues the record lacks any indication the court considered his additional statements. This assertion ignores the presumption that a court considered all relevant evidence unless the record establishes otherwise. (Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723, 735 ["We will not and do not presume that the trial court disregarded evidence in the record"].) Berry identifies nothing indicating the court ignored the declaration. If anything, the record establishes the opposite - the court expressly stated it "exercise[d] its discretion to consider the . . . late-filed papers in support of Plaintiff's opposition."
For the first time on appeal, Berry argues the anti-SLAPP statute is unconstitutional due to its overbreadth and by impermissibly chilling the right to petition. Those arguments are forfeited, and we decline to exercise our discretion to consider them. (Francies v. Kapla (2005) 127 Cal.App.4th 1381, 1386.)
A.
Berry contends the trial court erred by striking his malicious prosecution claim - a claim that the District brought an action, such as a proceeding before an administrative agency, against him without objective probable cause, pursued it with subjective malice, and it was ultimately resolved in Berry's favor. (Lane v. Bell (2018) 20 Cal.App.5th 61, 67; Johnson v. Superior Court (1994) 25 Cal.App.4th 1564, 1568.) Berry bases this claim entirely on statements Burkhart made to the Commission regarding his investigation into Berry's conduct at the school. This conduct is protected under the anti-SLAPP statute.
First, the claim arises from protected speech or petition activities; that is, the statements underlying the claim are themselves acts in furtherance of the right of free speech or petition. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; § 425.16, subd. (b)(1).) Burkhart's statements to the Commission were the result of an inquiry conducted by Burkhart, the school principal and superintendent. Burkhart sent the letter to the Commission to identify Berry's behavior, notify the Commission of the decision to not use Berry as a substitute teacher, and to prompt official action. Communications to a school governance authority regarding teacher misconduct allegations implicate issues of public interest - protected activities. (Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1176; Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 593-594 (Okorie) [statements made to parents and school district student safety investigation team were protected under § 425.16].) And child safety, appropriate education, and suitability of adults working with school children are matters of public interest. (Hicks, at p. 1176.)
Second, Berry has not demonstrated the likelihood of prevailing on the merits of the claim. (Neurelis, Inc. v. Aquestive Therapeutics, Inc. (2021) 71 Cal.App.5th 769, 793; Wilson v. Parker, Covert &Chidester (2002) 28 Cal.4th 811, 821.) At the outset, Berry does not allege the District instigated an administrative disciplinary hearing against him. (Johnson v. Superior Court, supra, 25 Cal.App.4th at p. 1568 [a "cause of action for malicious prosecution will not lie if the administrative body conducts an independent preliminary investigation prior to initiating disciplinary proceedings"].) He simply alleged Burkhart sent the Commission statements regarding his conduct, thus "maliciously induced a [Commission] investigation of [him]." (Italics added.) This alone is fatal to Berry's claim and sufficient to resolve the issue.
B.
Berry contends the trial court erroneously struck his defamation claims against defendants - a claim defendants made a publication that is false, defamatory, unprivileged, and naturally tends to injure or cause special damage. (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312.) We discern no error.
According to Berry, Burkhart repeated false statements - that Berry asked a student whether he was watching pornography, made comments about Hitler and the moon landing - when he spoke with students during his May 2018 investigation. Berry further alleged NCOE's email to Napa County school districts placing him on inactive status was reasonably susceptible to defamatory interpretation, i.e., he was ineligible to teach. Finally, Berry also appears to allege NCOE's email informing him of its decision changing his status to inactive because he was "not a good fit for our schools and students" was defamatory.
First, all these statements are protected under the anti-SLAPP statute. Berry's claims arise from both Burkhart's and NCOE's alleged statements to students and Napa County school districts, respectively. (Wilson, supra, 7 Cal.5th at p. 884.) That is, Berry expressly alleged the statements themselves constituted injury-producing conduct, resulting in loss of income and reputation among other things. (Okorie, supra, 14 Cal.App.5th at p. 594.) Moreover, the statements were made in connection with an issue under consideration or review in an official proceeding - internal investigations constitute official proceedings authorized by law. (§ 425.16, subd. (e)(2); Okorie, at p. 594.) Alleged statements Burkhart made during his investigation and discussions with the students constitute protected speech activity. (Verceles v. Los Angeles Unified School Dist. (2021) 63 Cal.App.5th 776, 787 (Verceles).) Similarly, NCOE's statements informing Berry and Napa County school districts that he was being placed on inactive status were investigation-related speech allegations, similarly protected under the anti-SLAPP statute. (Okorie, at p. 594.)
Second, there is no probability Berry will prevail on his defamation claims based on the law of the case doctrine. By stating a principle or rule of law necessary to our prior appellate decision," 'that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal.'" (Kowis v. Howard (1992) 3 Cal.4th 888, 893.) In our prior opinion, we expressly rejected Berry's assertion that NCOE's email to Napa County school districts placing him on inactive status or its email to Berry he was "not a good fit" stated a claim for libel - a form of defamation effected in writing. (Berry, supra, A160256); John Doe 2 v. Superior Court, supra, 1 Cal.App.5th at p. 1312.) Berry alleges the exact same defamation claim based on the same facts in his current complaint. Our prior determination precludes relitigation of the same issue here. (Kowis, at p. 893.)
There is similarly no merit to the claim based on Burkhart's allegedly false statements made to students during his investigation. Any "publication made in any 'judicial proceeding' or 'in any other official proceeding authorized by law' is privileged." (Lee v. Fick (2005) 135 Cal.App.4th 89, 96; Civ. Code, § 47, subd. (b); Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 668 [privilege applies to any communication made in an official proceeding, has some connection or logical relation to the action, was made to achieve the objective of the proceeding, and involved litigants or participants].) Civil actions for damages are barred when based on communications protected under the litigation privilege. (Hagberg v. California Federal Banks (2004) 32 Cal.4th 350, 360.) Burkhart, a participant in the official school proceeding, made statements to achieve an objective of the proceeding - investigate alleged misconduct. Those statements, as part of Burkhart's "preliminary interviews and conversations with potential witnesses," during the District's internal investigation are absolutely privileged. (Lebbos, at p. 668; Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 770.) Because all the evidence Berry marshals in support of his defamation claims are privileged communications, he cannot demonstrate probability of success on the merits.
C.
For similar reasons, we reject Berry's argument the trial court erred by striking his undue influence claim against the District.
Undue influence entails using confidences or apparent authority to obtain an unfair advantage over another; taking unfair advantage over another's weakness of mind; or "taking a grossly oppressive and unfair advantage of another's necessities or distress." (Civ. Code, § 1575; Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1033.) Like Berry's defamation claim, this claim arises from Burkhart's statements to students as part of his investigation into Berry's misconduct - that Burkhart used his position of authority to exercise influence over students and induce them to make false and defamatory allegations. As discussed above, Burkhart's alleged statements made in the course of his investigation and in discussions with students constitute protected speech activity. (Verceles, supra, 63 Cal.App.5th at p. 787.) Thus, the District satisfies the first step of the anti-SLAPP analysis and, for the reasons discussed above regarding the litigation privilege, Berry fails to demonstrate any probability of success on the merits, the second step of the anti-SLAPP analysis.
D.
Berry contends the trial court erred in striking portions of his whistleblower retaliation claim - that defendants retaliated against him for describing defendants' "lawless, unethical, and anti-educational conduct." We disagree.
A whistleblower retaliation claim requires demonstrating an employer retaliated against an employee for disclosing information to government and law enforcement agencies where the employee has reasonable cause to believe the information addresses regulatory or statutory violations. (Lab. Code, § 1102.5, subd. (b); see also id., § 232.5 [prohibiting employer from discharging, formally disciplining, or otherwise discriminating against an employee who discloses information about employer's working conditions].) Berry alleged defendants engaged in the following adverse actions: Burkhart made statements to law enforcement after receiving Berry's government tort claim, NCOE refused to retract its email to Napa County school districts notifying them it deactivated Berry's substitute teacher status, and NCOE refused to rescind the email to Berry noting he was not a good fit for the District.
Berry also alleged NCOE engaged in retaliation by refusing to reactivate him as a substitute teacher. The trial court determined this was not a protected activity under the anti-SLAPP statute and disregarded the allegations as a basis for a motion to strike. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1011-1012.) Berry does not appear to challenge that portion of the court's ruling.
First, defendants satisfied the first step of the anti-SLAPP analysis. The alleged criminal accusation by Burkhart was a statement and contact with law enforcement that could culminate in criminal prosecution, a protected activity. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286.) The report falls directly within the heart of the activity, "any written . . . statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law." (§ 425.16, subd. (e)(1).) Similarly, NCOE's two emails constitute protected conduct, written statements made in connection with an issue under consideration in an official proceeding. (Id., subd. (e)(2).) Rather than suing NCOE for injuries arising from its decision to not reinstate Berry's substitute teacher status, Berry sued NCOE for communicative acts - sending emails to school districts and to Berry, and subsequently refusing to retract statements made in the emails. These communications, not the decision against reinstatement, form the basis for Berry's retaliation claim at issue here. (Wilson, supra, 7 Cal.5th at p. 884.)
Second, Berry's retaliation claim lacks minimal merit. (Baral v. Schnitt, supra, 1 Cal.5th at p. 385.) As for Burkhart's statements to law enforcement, those communications to" 'institute[] a criminal investigation against' Berry are absolutely privileged." (Berry, supra, A160256); former Civ. Code, § 47, subd. (b).) This bars Berry's claim as to the District. (Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 617.)
The Legislature amended Civil Code section 47 to provide a "communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report" is no longer absolutely privileged. (Stats. 2020, ch. 327, § 2, eff. Jan. 1, 2021.) The Legislature did not expressly or unmistakably state this amendment applies retroactively, and we do not apply it here. (USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 216 [presuming statutes do not apply retroactively in the absence of express language].)
The claim against NCOE is similarly barred under the Government Claims Act. A suit for damages may not be lodged against a government entity unless it has been presented with a timely claim describing the injury incurred. (Gov. Code, §§ 810, 910, subd. (d).) By doing so, the claimant apprises the "governmental body of imminent legal action so that it may investigate and evaluate the claim and where appropriate, avoid litigation by settling meritorious claims." (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70, 74.) To proceed in a suit for damages, "the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint." (Nelson v. State of California (1982) 139 Cal.App.3d 72, 79.) Here, however, the tort claim Berry submitted to NCOE did not include any allegations regarding NCOE's refusal to retract its emails. Nor did his claim include reasonably inferable facts suggesting NCOE's conduct was in retaliation for Berry disclosing any lawless, unethical, and anti-educational content, as he alleges in his complaint. Rather, Berry's claim simply alleged NCOE made false statements that he was not a good fit for the school districts and implied he was guilty of wrongdoing. Because Berry's complaint "alleges a factual basis for recovery which is not fairly reflected in the written [government] claim," Berry's retaliation claim against NCOE is barred. (Nelson, at p. 79.) Striking the claim was proper.
E.
Berry contends the trial court improperly struck his state and federal procedural due process claims against defendants after erroneously concluding those claims arose from protected activity. On this, we agree.
Governments must provide persons with due process before depriving them of any property or liberty interest. (U.S. Const., 14th Amend. ["nor shall any state deprive any person of life, liberty, or property, without due process of law"]; Cal. Const., art. I, § 7, subd. (a) ["A person may not be deprived of life, liberty, or property without due process of law...."].) Any deprivation must be preceded with notice and an opportunity to be heard. (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) The opportunity to be heard must be provided at a meaningful time and in a meaningful manner, but the precise dictates "are flexible and vary according to context." (Ibid.)
Federal due process "appl[ies] only to the threatened deprivation of liberty and property interests." (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1059.) For due process claims under the California Constitution, there is no requirement that an aggrieved party establish a protected property interest. (Chorn v. Workers' Comp. Appeals Bd. (2016) 245 Cal.App.4th 1370, 1387-1388.) Instead, the party must identify a deprivation of a statutorily conferred benefit or interest. (Ibid.)
Defendants have not demonstrated their activities forming the basis of Berry's due process claim constitute protected speech or petitioning. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).) Here, the injury-producing conduct Berry challenges appears to be defendants conducting an investigation without any meaningful procedures. He further alleged defendants denied him procedures to which he was entitled, resulting in an automatic termination of his substitute teaching status. Specifically, Burkhart sent NCOE and the Commission letters regarding Berry's behavior at the District. NCOE then summarily, without any investigation or providing Berry an opportunity to respond to Burkhart's statements, emailed all Napa County school districts placing Berry on inactive substitute teaching status.
In one fleeting sentence, the District's brief asserts Berry's due process claim against it depends on petitioning activity, such as Burkhart's statements to NCOE or the Commission. Not so. (Wilson, supra, 7 Cal.5th at p. 884.) Rather, his claim focuses on the failure to give him notice of the misconduct allegations or a meaningful opportunity to be heard and respond to Burkhart's statements. (Park, supra, 2 Cal.5th at p. 1066.) While Burkhart's alleged statements regarding Berry's misconduct might be protected and may have led to the liability-creating activity - the alleged denial of notice of the allegations or opportunity to be heard - that does not convert Burkhart's statement into the basis for alleged violations of due process. (Park, at p. 1068.)
We similarly reject NCOE's brief assertion, which merely quotes the trial court's order, that its investigation of Berry was itself a protected activity under section 425.16. The court cited Jeffra v. California State Lottery (2019) 39 Cal.App.5th 471, which concluded an employer's investigation of the plaintiff employee was an official proceeding authorized by law under section 425.16, subdivision (e)(2), was initiated for improper purpose, and served as the basis for plaintiff's whistleblower retaliation claim. (Jeffra, at pp. 482-483.) To the extent Jeffra held the investigation of an employee itself was protected activity under the anti-SLAPP statute, courts have declined to follow it. (Verceles, supra, 63 Cal.App.5th at p. 788.) Moreover, case law does not suggest that "all aspects of internal investigations arise out of protected [speech or] 'petitioning activity' for the purpose of the anti-SLAPP statute." (Laker v. Board of Trustees of California State University, supra, 32 Cal.App.5th at p. 773.) More importantly, NCOE does not identify any written or oral statement made in connection with its investigation that formed the basis of Berry's due process claim - that he was not provided with notice of the allegations or a reasonable opportunity to respond to the allegations. (Verceles, at p. 788.) Because speech is not the basis of Berry's due process claim against NCOE, its investigation of Berry is not protected conduct under the anti-SLAPP statute. (Ibid.)
As defendants failed "to make the threshold showing the complaint arose from protected activity" (Verceles, supra, 63 Cal.App.5th at p. 792, fn. 8), examining whether Berry established a probability of prevailing on the merits is unnecessary. The trial court erred by striking these claims.
We do not address the District's argument, made for the first time at oral argument concerning Berry's procedural due process and 42 United States Code section 1983 claims, that we should affirm the trial court's ruling because it is correct on any ground, that is, because Berry cannot prevail on the merits. Because the District did not raise this issue in its appellate brief, it is forfeited. (County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1326, fn. 10 [arguments raised for the first time at oral argument are forfeited].)
F.
For similar reasons, we also agree the trial court erred by striking Berry's 42 United States Code section 1983 claim, which alleged defendants denied him equal protection of the law based on his age and gender and denied him procedures to which he was entitled.
"Every person who," under the color of state law, deprives a person of their federal constitutional rights, such as equal protection of the laws, "shall be liable to the party injured in an action at law." (42 U.S.C. § 1983; U.S. Const., 14th Amend., § 1; Cal. Const., art. 1, § 7, subd. (a).) Rather than conferring persons with substantive rights, 42 United States Code section 1983 "provides 'a method for vindicating federal rights elsewhere conferred.'" (Albright v. Oliver (1994) 510 U.S. 266, 271.) Plaintiffs must allege a person acting under color of state law violated their constitutional or federal statutory rights. (Irwin v. City of Hemet (1994) 22 Cal.App.4th 507, 516.) To prove discrimination in violation of 42 United States Code section 1983 based on the federal equal protection clause, plaintiffs must demonstrate defendants acted with the intent to discriminate. (Peters v. Lieuallen (9th Cir. 1984) 746 F.2d 1390, 1393.)
Like Berry's due process claim, Berry's 42 United States Code section 1983 claim is based on defendants' allegedly discriminatory conduct toward male employees, not Burkhart's communications or NCOE's investigation. He alleged that, unlike its treatment of him, the District informed a female employee of misconduct allegations, provided her an opportunity to respond to the allegations, and retained her after adhering to those procedures. He further alleged NCOE engaged in a pattern of treating male substitutes differently than female substitutes - female substitutes were more likely to be informed of allegations, allowed an opportunity to respond, and less likely to be summarily dismissed. According to Berry, NCOE was more likely to adhere to the Education Code and more likely to require witness statements for female substitutes. None of these allegations indicate defendants' communications regarding Berry's alleged misconduct constitute the basis for liability. (§ 425.16, subd. (b)(2).)
Accordingly, defendants have not satisfied their burden of showing their "conduct by which plaintiff claims to have been injured falls within one of the four categories" in the anti-SLAPP statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) The trial court erred by striking this claim. (Verceles, supra, 63 Cal.App.5th at p. 792, fn. 8.)
G.
We reject Berry's argument that the striking of his abuse of process claim against defendants - alleging defendants' counsel knowingly made false claims and filed documents containing false statements - was improper.
An abuse of process claim arises when litigants misuse the court's process and tools once they are in a lawsuit. (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 42; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 [defendant must have had an ulterior motive when using the process and engaged in a willful act in the use of process not proper in the regular conduct of proceedings].) The "gravamen of the claim is misconduct in the underlying litigation." (Booker v. Rountree (2007) 155 Cal.App.4th 1366, 1370.) But written and oral statements or writing made before a judicial proceeding are protected under the anti-SLAPP statute. (§ 425.16, subd. (e)(1).) Because Berry's abuse of process claim is based on allegedly false statements defendants' counsel filed in his lawsuit, it arises from allegations of misconduct in the underlying litigation thus subject to a special motion to strike. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.)
Moreover, there is no probability Berry will prevail because the statements giving rise to Berry's abuse of process claim are protected by the litigation privilege. Any publication or broadcast made in the course of a judicial proceeding is privileged. (Civ. Code, § 47, subd. (b); Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The statement must be made in judicial proceedings, by litigants or authorized participants, to achieve the litigation's object, and have some logical relation or connection to the proceeding. (Silberg, at p. 212.) Those elements are satisfied here. The alleged statements were made by defendants' attorneys - participants authorized by law - in the course of Berry's lawsuit in pursuit of their efforts to defend their clients; the statements included challenging Berry's government tort claim based on the alleged lack of a signature or making legal arguments about the Education Code. (Silberg, at p. 214 [litigation privilege also "promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests"].) Berry's claim is barred by the litigation privilege. (GeneThera, Inc. v. Troy &Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910.)
H.
We reject Berry's argument that the anti-SLAPP statute does not apply to any of his claims because Burkhart's statements and the statements of defendants' attorneys, as they relate to Berry's abuse of process claim, were illegal as a matter of law.
In Flatley v. Mauro (2006) 39 Cal.4th 299, the Supreme Court held illegal conduct did not qualify for anti-SLAPP protections where "the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law." (Id. at p. 320.) But to the extent Berry alleges Burkhart violated various Education Code statutes and regulations, that does not constitute criminal conduct and the Flatley exception is inapplicable. (See, e.g., Ed. Code, § 44429 [requiring charges of unprofessional conduct to be presented to the board and verified under oath]; Cal. Code Regs., tit. 5, § 80303, subd. (b)(6) [requiring report of misconduct to include known contact information for all persons who have information regarding the misconduct].) The "illegal conduct" exception only applies to criminal conduct, not merely conduct "violative of a statute." (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.)
Moreover, "conduct that would otherwise be protected by the anti-SLAPP statute does not lose its coverage simply because it is alleged to have been unlawful." (Hansen v. Department of Corrections &Rehabilitation (2008) 171 Cal.App.4th 1537, 1545.) The defendant must concede, or the evidence must conclusively establish, the allegedly protected speech or activity was illegal as a matter of law. (Ibid.) Here, Berry argues Burkhart and defendants' legal counsel made illegal statements violating various statutes barring intentional misrepresentations or willful omissions. (See, e.g., Lab. Code, § 1050 [making misrepresentation or attempting to prevent former employee from obtaining employment is a misdemeanor]; Pen. Code §§ 133 [knowingly making false statements to witnesses to be called at trial to affect witness testimony is a misdemeanor], 134 [preparing a false record for fraudulent purpose in any trial, proceeding or inquiry is a felony], 135 [destroying or concealing record to prevent it from being produced is a misdemeanor], 148.5, subd. (a) [knowingly making a false police report is a misdemeanor].) But aside from making speculative, unsupported statements, Berry does not proffer any evidence Burkhart or counsel knew any of their statements were false or purposely omitted information. Nor does Berry provide any evidence, let alone conclusive evidence, that Burkhart's investigation and interviews with students materially disrupted classwork or extracurricular activities, as he insists. (Ed. Code, § 44811, subd. (a).) The "illegal conduct" exception to the anti-SLAPP protections does not apply here.
II.
Because we reverse the trial court's order striking Berry's procedural due process and 42 United States Code section 1983 claims, we also reverse and remand on the issue of attorney fees. Defendants who prevail on a special motion to strike are entitled to attorney fees and costs. (§ 425.16, subd. (c); Sanchez v. Bezos, supra, 80 Cal.App.5th at p. 763.) Partially prevailing defendants, however, are not entitled to obtain as a matter of right their "entire attorney fees incurred on successful and unsuccessful claims merely because the attorney work on those claims was overlapping." (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 344-345 (Mann).)
In light of this conclusion, we do not address Berry's arguments that the attorney fees awarded constituted an excessive fine under the Eighth Amendment of the United States Constitution, the trial court improperly rejected his request to offset the fee award by the costs to which he is entitled from his previous appeal, and the award was unsupported by appropriate documentary evidence. (Berry, supra, A160256.)
On remand, the trial court must determine the lodestar amount for the attorney hours expended on the successful portion of defendants' motion to strike. (Mann, supra, 139 Cal.App.4th at p. 345.) If the work on the successful and unsuccessful claims overlapped, the court should consider defendants' relative success in achieving their objectives and reduce the fees if appropriate. (Ibid.) "This analysis includes factors such as the extent to which the defendant's litigation posture was advanced by the motion, whether the same factual allegations remain to be litigated, whether discovery and motion practice have been narrowed, and the extent to which future litigation expenses and strategy were impacted by the motion." (Ibid.) Nothing precludes attorneys representing a party on a pro bono basis from recovering attorney fees. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 265.)
III.
Berry contends the trial court abused its discretion by denying him leave to amend his complaint to add a gender discrimination claim under FEHA against the District. We disagree.
A trial court has wide discretion in allowing amendments to pleadings. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175 (Melican) [upholding rulings unless there is a manifest or gross abuse of discretion].) Generally, courts should permit amendments to complaints at any time in the proceeding, up to and including trial, where there is no prejudice to the adverse party. (Ibid.) But a court may appropriately deny a proposed amendment if the party presents it after an unwarranted delay or lack of diligence. (Ibid.) In those circumstances, appellate courts are less likely find an abuse of discretion. (Ibid.)
Here, Berry admits he knew the facts underlying his gender discrimination claim since 2018 and 2019. (Record v. Reason (1999) 73 Cal.App.4th 472, 486-487 [denying leave to amend complaint to allege new cause of action where plaintiff was aware of facts for new claim nearly three years before seeking leave to amend].) This court's prior opinion authorized him to proceed on that claim, but he failed to include it in his third amended complaint. (Berry, supra, A160256.) Almost one year after our prior opinion, Berry sought leave to amend after the District moved to dismiss his complaint once the trial court struck all of his claims; he indicated he believed he could continuously amend the complaint. This does not excuse his lack of diligence in seeking to amend his complaint. (Davies v. Symmes (1942) 49 Cal.App.2d 433, 444.) It would be "patently unfair to allow" Berry to defeat the District's motion to dismiss his complaint after he chose to omit the claim - despite our prior opinion - and sought to add it only after all his other claims were stricken. (Melican, supra, 151 Cal.App.4th at p. 176.) Doing so would allow Berry to "present a 'moving target' unbounded by the pleadings." (Ibid.) Denying Berry's request to amend was not a manifest abuse of discretion.
DISPOSITION
The order granting defendants' anti-SLAPP motion as to Berry's procedural due process and 42 United States Code section 1983 claims is reversed. The order awarding attorney fees and costs is also reversed and remanded for reconsideration in light of our decision. We otherwise affirm. The parties are to bear their own costs on appeal.
WE CONCUR: Fujisaki, Acting P. J., Petrou, J.