Opinion
A146032
07-28-2017
JOHN YUAN KUO KU, Plaintiff and Appellant, v. YASMAN SADAT DIBAJI et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15765671)
Plaintiff and appellant John Yuan Kuo Ku sued his former employer and others in connection with the termination of his teaching duties as a faculty member after his employer conducted an investigation and concluded he had violated its sexual harassment policy. He now appeals an order granting a special motion to strike his complaint under the anti-SPLAPP statute (Code Civ. Proc., §425.16). We reverse in part.
BACKGROUND
Ku was employed as a faculty member at Northwestern Polytechnic University, in Fremont, California (the university). In February 2015, a female graduate student who was working part-time in the university's admissions department, Yasman Dibaji, complained to a member of the Human Resources Department about some of Ku's behavior toward her that made her feel uncomfortable. University officials believed her reports, if true, could violate its policies. It conducted an investigation, interviewed twenty-one people including Ku, and concluded Ku had in fact violated its sexual harassment policies. Then, on March 6, 2015, it issued a written warning to Ku, and demoted him from a full-time classroom instructor to an adjunct faculty instructor for online teaching only, available to teach if opportunities arose. It notified him that as an adjunct professor, he was not eligible for benefits and wasn't scheduled to teach for the upcoming summer term, and that it would notify him if any teaching opportunities arose.
Ku then initiated this litigation, filing a complaint against the university and two school officials who had taken part in the investigation, Executive Vice President Peter Hsieh and Human Resources Director Gerald Wong (all three of whom we refer to collectively as "the university defendants"), and against the student, Dibaji.
He alleged five causes of action. The first, asserted against all defendants (and the sole claim asserted specifically against Dibaji), was for defamation. It alleged Dibaji herself had made false accusations of sexual harassment against him, as a result of which he was disciplined by the university which allegedly did not conduct a proper investigation and "acted through the arbitrary decisions of its officers, among them defendants Peter Hsieh and Gerald Wong, in finding that plaintiff did commit sexual harassment, despite the fact that the three allegations by Dibaji are false and without any sexual overtones." It further alleged that Wong, after interviewing two of Ku's fellow professors, notified Ku that he was formally suspended from his position without pay and removed him from all teaching assignments. In addition, Ku was allegedly "ordered to remove himself from his university housing unit, effectively terminating [his] employment with defendant [university]." He alleged that school official Hsieh "harbored ill will" against him as evidenced by a December 2014 job performance evaluation, failed to consider evidence favorable to Ku when investigating Dibaji's complaint, and "summarily decided" Ku had committed sexual harassment. Finally, the defamation claim alleged that on March 6, 2015, defendants Wong and Hsieh "published their findings to others affirming that defendants found plaintiff committed sexual harassment and plaintiff was to be disciplined as set forth above."
The second cause of action, asserted against the three university defendants, was for "wrongful discipline/termination," alleging the university defendants had breached an express and implied employment contract by demoting him without pay to adjunct professor and "allow[ing] allegations about sexual harrassments [sic] to be lodged and investigated, and when there was no evidence to substantiate the allegations, [and] imposed severe disciplinary actions against" him. Ku alleged the contract guaranteed his continued employment "as long as he carries our [sic] his duties in a proper manner," and that he "would not be disciplined for other than good cause and in accordance with due process."
The third cause of action, also asserted against the three university defendants, was for "tortious breach of good faith and fair dealing." It alleged the existence of an implied covenant of good faith and fair dealing, and the wrongs allegedly committed were these: "Defendants breached their contract with plaintiff Ku in finding plaintiff having [sic] committed sexual harassment against [Dibaji] without good cause and in an arbitrary fashion, and then imposed severe penalties on plaintiff based on such groundless charges . . . . Defendants' ulterior motive was to use the groundless charge of sexual harassment to terminate plaintiff's employment."
Ku brought a fourth cause of action against the two school officials only, for intentional infliction of emotional distress, incorporating all of his prior allegations.
Finally, in his fifth cause of action, asserted against the university, Ku sought a declaration that he did not commit sexual harassment against Dibaji.
At the hearing below, Ku represented that this cause of action against unspecific defendants was asserted against only his employer and so we treat it as such.
The defendants filed a motion to strike the complaint in its entirety under section 425.16, supported by declarations from all three individual defendants (Wong, Hsieh and Dibaji) and a declaration from one of their defense attorneys with voluminous attachments addressing the subject of public interest in the topic of sexual harassment. Ku opposed the motion, supported by his own declaration that principally addressed his version of events concerning Dibaji and the manner in which her report was handled by the university.
The trial court granted the motion. It ruled that Ku's claims "are all based on Defendant Dibaji's complaint of sexual harassment and the University's alleged inadequate investigation of those claims before imposing discipline," and that therefore the court was required to dismiss the complaint unless Ku met his burden of showing he would probably prevail. The trial court concluded, further, that Ku had not met his burden to establish a probability of prevailing on his claims. It dismissed the complaint with prejudice, and this timely appeal followed.
DISCUSSION
Before turning to the issues, we note that our consideration of this appeal is constrained to a large degree by Ku's briefing. He makes a number of arguments that are unsupported by legal authority or meaningful analysis, presented in only cursory fashion, and his briefing overall contains few citations to the appellate record.
The rules are well-settled but bear repeating. " 'A judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics added in part.) To meet this burden, an appellant must write a brief that contains cogent legal argument, supported by legal authority and analysis and appropriate citations to the appellate record for every factual assertion. "Contentions on appeal are waived by a party who fails to support them with reasoned argument and citations to authority." (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.) "An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument." (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873; see also Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293.)
Further, "[t]he rules of court require litigants to '[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.' (Cal. Rules of Court, rule 8.204(a)(1)(C).) 'We may decline to consider passages of a brief that do not comply with this rule.' " (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 556, fn. 1.) "We are not required to make an independent search of the record" ourselves when a litigant fails to furnish appropriate record citations. (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 657; accord, Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406 ["The court is not required to make an independent search of the record and may disregard any claims when no reference is furnished"]; Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628 ["We disregard assertions and arguments that lack record references [citation] or lack citations to legal authority"].) And finally, we generally do not consider issues unless they are raised in the opening brief; issues raised for the first time in a reply brief are disregarded. (See Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1426.)
With these limitations in mind, we turn now to the merits of the appeal.
I.
The Anti-SLAPP Statute
Code of Civil Procedure section 425.16 states, inter alia, that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) In turn, the phrase " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue,' " includes, inter alia, "(2) 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," and "(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (Id., subd. (e).)
Disposition of an anti-SLAPP motion is governed by a two-step process. " 'First, the court decides whether the defendant . . . has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff's complaint fit one of the categories spelled out in section 425.16, subdivision (e). If the court finds that such a showing has been made, it must then determine the second step, whether the plaintiff . . . has demonstrated a probability of prevailing on the claim.' " (Comstock v. Aber (2012) 212 Cal.App.4th 931, 940 (Comstock).) Put another way, the moving defendant bears the initial burden of establishing that the challenged claims arise from protected activity, and if the defendant carries its burden, the plaintiff must then demonstrate its claims have "at least 'minimal merit.' " (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) We review the trial court's ruling on an anti-SLAPP motion de novo. (Park, at p. 1067.)
II.
Analysis
A. The University Defendants Did Not Meet Their Burden to Show That the Second Through Fifth Causes of Action Arise from Protected Activity.
With regard to the first prong of the anti-SLAPP analysis, Ku makes two arguments in his opening brief.
First, he contends the anti-SLAPP statute does not apply because Dibaji's complaints about him were not matters of public interest because, even if factually true, they did not amount to sexual harassment under the university's policy. We reject this argument because Ku fails to support it with legal authority or analysis of anti-SLAPP law and so has not met his burden to demonstrate legal error.
The sole authority Ku cites, which is in his reply brief, is Telga Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722. That case involved quite different circumstances from those here, and even in his reply brief Ku makes no effort to discuss its legal analysis or explain how it applies to the facts here.
There is a substantial body of law regarding when an employment dispute may be considered a matter of public interest. (See, e.g., Baughn v. Department of Forestry and Fire Protection (2016) 246 Cal.App.4th 328, 335-340 [discussing and applying case law].) However, Ku does not invoke any of this case law or contend that his dispute with the university or the allegations of sexual harassment against him (regardless of their truth or falsity) were not a matter of public interest. Hence we do not address or decide that issue.
There is another reason we need not reach Ku's argument, and that is that the trial court provided an alternative and independent ground for deciding Ku's claims arose out of protected activity: that the conduct Ku complains of concerns an issue made in connection with potential litigation and thus is protected speech under section 425.16, subdivision (e)(2), quoted ante. Ku fails to address this alternative ground at all in his opening brief. Having failed to argue that the university's sexual harassment investigation does not qualify for protection under subdivision (e)(2), Ku has forfeited any challenge to that alternative basis for the trial court ruling. (See also Comstock, supra, 212 Cal.App.4th at pp. 944-945 [statements to human resources personnel in sexual harassment investigation held protected under subdivision (e)(2) as statements prior to litigation].)
We do note one stray sentence in his reply brief on the subject ("The publication of the investigation finding that Appellant Ku sexually harassed Dibaji by Respondents did not come under CCP Section 425.16(e)(2) or (e)(4)"). But this is too little and too late to amount to a cognizable appellate argument.
This brings us, though, to Ku's second argument which is that even if his lawsuit alleges protected activity it does not "arise from" such activity. (See §425.16, subd. (b)(1).) And here, we agree in part.
Ku offers no meaningful argument as to why the first cause of action for defamation does not arise from protected activity, and indeed concedes at page 7 of his opening brief that this cause of action "arguably" does, in its entirety. He made similar concessions in the trial court. And his arguments in supplemental briefing demonstrates the claim does arise from protected activity: he asserts, "Respondents' fabrication of sexual harassment charges against Appellant Ku and published [sic] the same in the community was the act that Appellant Ku based his defamation claim . . . ." In other words, he says that his defamation claim is based on the "publication" of allegedly false "charges" in connection with the university's sexual harassment investigation; communications, in other words, that he has not claimed are unprotected. (See § 425.16, subd. (e)(2) ["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"]; see Comstock, supra.) So we will proceed to analyze, in part B below, the second prong of the anti-SLAPP analysis: whether Ku demonstrated a likelihood of prevailing on the defamation claim against all four defendants. But first we address his argument on the first prong as to the other four causes of action, the thrust of which is that they are based not on speech but on the university defendants' actions. And it is here that we agree with Ku.
In his papers below, Ku wrote: "In defendants' moving papers it is claimed that all five causes of action are predicated on defendant Dibaji's free speech issue. This assertion is of course incorrect, as except for the defamation count the remaining causes of action turned on the wrongful discipline of plaintiff by [university] and its officers and [are] totally unrelated to the free speech issue. So even if defendants prevail on the Anti-Slapp motion, only the defamation count shoudl [sic] be stricken." (Italics added.) Again at the hearing, he argued that "even if the Court was inclined to strike the first defamation cause of action, the other four should be allowed to continue."
As already noted, these causes of action are asserted against one, some or all of the university defendants, but not against Dibaji.
Here Ku argues, in effect, that the four causes of action he asserted against his employer and defendants Hsieh and Wong are based on the adverse actions they took against him after Dibaji complained, and are "independent" of her speech. "The 'gravamen' of such claims is not about Dibaji's complaint," he contends, "but the wrongful acts of Respondents [university] and its officers." By contrast, defendants argue that "[t]he gravamen of each claim here is that Dr. Ku was wrongly accused of and disciplined for sexual harassment." As defendants put it, "[t]he complaint alleges that the University's actions resulted from Miss Dibaji's statements. And the conduct said to have breached the contract and covenant was allowing 'unsubstantiated allegations about sexual harassment to be lodged and investigated,' improperly finding that Dr. Ku committed sexual harassment, and then imposing 'severe penalties on [him] based on such groundless charges . . . .' "
Allegations concerning speech or other protected activity are not enough, in and of themselves, to bring a cause of action within the ambit of section 425.16. The Supreme Court has confirmed this time and again: "[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been 'triggered' by protected activity does not entail it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Navellier, supra, 29 Cal.4th at p. 89.) "[T]he statutory phrase 'cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) " 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e) . . . .' " (Ibid.)
In Park, our Supreme Court recently examined this nexus standard, and concluded that a public university sued for national origin discrimination by a professor to whom it had denied tenure had not met its burden to show the discrimination suit arose from protected activity. (See Park, supra, 2 Cal.5th at pp. 1061, 1073.) Park explained, "a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted." (Id. at p. 1060.) Park emphasized, too, that courts must "respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim." (Id. at p. 1065.) In Park, although the plaintiff alleged that a dean had made comments that reflected discriminatory prejudice and that plaintiff had pursued an internal grievance that had been denied, the Supreme Court concluded the suit did not arise from protected activity because the elements of the plaintiff's claims "do not depend on proof of any University communications." (Id. at p. 1068.) "The elements of [plaintiff's] claim," it explained, "depend not on the grievance proceeding, any statements, or any specific evaluations of him in the tenure process, but only on the denial of tenure itself and whether the motive for that action was impermissible." (Ibid.) Moreover, the fact that "[t]he tenure decision may have been communicated orally or in writing . . . does not convert the statements themselves into the basis for liability." (Ibid.) The court also rejected the theory that the university's tenure decision, on the one hand, and the deliberations upon which it was based, on the other, were "intertwined and inseparable" for anti-SLAPP purposes; it found no support for the proposition that "disciplinary decisions reached in a peer review process, as opposed to statements in connection with that process, are protected," and disapproved two court of appeal decisions to the extent they suggested otherwise. (See id. at pp. 1069, 1070.)
Park involved, among others, the official proceedings provision of the anti-SLAPP statute. (See Park, supra, 2 Cal.5th at p. 1062, fn. 2 [citing, inter alia, Code Civ. Proc., § 425.16, subd. (e)(2)].)
A decision to similar effect on which Ku relies, and which the Supreme Court cited with approval in Park, is the Third District's decision in Nam v. Regents of the University of California (2016) 1 Cal.App.5th 1176 (Nam). Nam held that a medical resident's claims against a university for wrongful termination, breach of contract and related causes of action that were premised on the university's allegedly wrongful disciplinary actions and, ultimately, its termination of the plaintiff from her position did not "arise from" any protected activity, so as to warrant anti-SLAPP protection. (See id. at pp. 1185-1193.) And that was true even though the adverse employment actions were the culmination of various oral and written communications, including complaints about the plaintiff, an investigation, disciplinary warnings and written notice of her termination. (See id. at p. 1186.) As the Supreme Court in Park explained, "Nam illustrates that while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden" wrongfully. (Park, supra, 2 Cal.5th at p. 1066, italics added; see also Nam, at p. 1190 ["protected activity that is incidental to a cause of action [does not] justify an anti-SLAPP dismissal"].)
Because Park was decided after the close of briefing, we invited supplemental briefing from the parties about its impact, and directed them to address which actions by defendants supply the elements of each cause of action and thus form the basis for liability. (See Park, supra, 2 Cal.5th at p. 1063.) Ku's supplemental briefing, while once again deficient in many particulars (again, utterly lacking in record cites and citing practically no legal authority), asserts that his causes of action "are based on the termination of his employment and infliction of emotional distress, and not . . . on Dibaji's speech or the alleged investigation that followed," and that he "is suing Respondents not on the investigation part but on the action taken after the sham investigation." He contends defendants "used Dibai's [sic] speech as a pretext to fire [him] from his professorship: that is the gravamen of Appellant's causes of action." For their part, defendants argue that, unlike in Park, "the precise conduct said to create liability is each participant's role in the harassment investigation."
We agree with Ku. Here, neither speech nor petitioning activity are themselves the wrongs complained of in Ku's second through fifth causes of action. Rather, just as in Nam, what gives rise to liability in three of them is that the university defendants denied Ku various employment benefits. (See Park, supra, 2 Cal.5th at p. 1066 [discussing Nam].) And in the other, the declaratory relief claim, Ku seeks only a determination that he didn't commit sexual harassment, a claim that, contrary to defendants' characterization, is not "directed to what was said during the investigation." Ku merely seeks a determination by a court, rather than by his employer, as to whether he engaged in such conduct.
Defendants argue that all of Ku's claims "arise from" protected activity because "every count is based on the sexual harassment report and its handling," but again we disagree. At most, Dibaji's complaint to school officials and/or the university's conduct of the ensuing investigation are steps leading up to the adverse employment decisions taken against him. (See Park, supra, 2 Cal.5th at p. 1060.) The elements of those various causes of action do not depend on proof of protected conduct or communications. (See Park, supra, 2 Cal.5th at p. 1068.) Neither the adverse disciplinary actions taken against Ku that underlie these causes of action, nor Ku's conduct toward Dibaji underlying his request for declaratory relief that he didn't commit sexual harassment, were themselves "an act in furtherance of the right of petition or free speech." (City of Cotati, supra, 29 Cal.4th at p. 78.)
Defendants also cite authority that an individual hearing officer's conduct of an internal sexual harassment investigation is protected activity (see Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1394, 1398-1399; Park, supra, 2 Cal.5th at p. 1070 [discussing Vergos]), and argue that "[i]ndividuals employed by the university cannot be liable for breach of contract [and] [t]herefore, any [contract-based] claim is inherently based on what they said or did in conducting the investigation, evaluating the evidence, etc." We do not agree. This argument conflates the question whether Ku's claims arise from protected activity with whether the claims are legally tenable. Whether Ku can state contract-based causes of action against the two individual school officials (i.e., by seeking to hold them liable for the adverse employment actions taken against him) is not relevant to whether those causes of action—as pled—arise from protected activity. The legal sufficiency of a plaintiff's claims against the individual university defendants may be the basis for a demurrer, and is relevant to the second prong of the anti-SLAPP analysis, but it is not relevant to the first prong. Only after the defendant has made the required showing the claims arise from activity protected by section 425.16, does the burden shift to the plaintiff to demonstrate their probable merit. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; see also Comstock, supra, 212 Cal.App.4th at p. 942 [in evaluating whether cause of action arises from protected activity, "[t]he question is what is pled— not what is proven"].) As we have said, the gravamen of Ku's contract-based claims against all of the university defendants, as pled, is the adverse employment action taken against him following the university's investigation.
Finally, we recognize, as was also true in Park, that the complaint does contain isolated allegations of protected activity that would appear to attack the investigation itself as distinct from the resulting employment decision. (See Park, supra, 2 Cal.5th at p. 1068.) For example, and without purporting to be exhaustive, defendants point out that Ku alleges the university " 'allowed allegations about sexual harassments to be lodged and investigated,' " took adverse action "without . . . due process," and made a "finding Plaintiff having [sic] committed sexual harassment . . . without good cause and in an arbitrary fashion." However, nothing would have prevented defendants from moving in the trial court to strike particular allegations of protected activity, yet they didn't do so. (See Baral v. Schnitt, supra, 1 Cal.5th at p. 393 ["an anti-SLAPP motion . . . may be used to attack parts of a count as pleaded"].) Instead, they moved to strike only the complaint in its entirety, and that is the ruling we review.
In sum, we conclude the university defendants failed to meet their burden to show that the second through fifth causes of action "arose from" protected activity, and the trial court therefore erred in striking those causes of action in their entirety under section 425.16.
B. Ku Did Not Meet His Burden to Show a Likelihood of Prevailing on the First Cause of Action for Defamation.
We turn, finally, to the viability of Ku's defamation claim. To demonstrate the required probability of prevailing for purposes of the anti-SLAPP statute, a plaintiff must state and substantiate a legally sufficient claim. (Navellier, supra, 29 Cal.4th at p. 88.) This requires a showing " ' "that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Id. at pp. 88-89.) Ku has made neither showing.
Ku's opening brief contains no distinct argument directed at the viability of his defamation claim, and as best we can tell the sum total of his argument on the issue is this: "Defendants collectively published their accusations that plaintiff Ku committed sexual harassments on defendant Dibaji to the [university] Community and beyond. Plaintiff's reputation was forever damaged due to the publication. The accusations were lacking in substance, as plaintiff's acts did not constitute sexual harassment. Plaintiff Ku would have prevailed in the defamation cause of action, as even if defendants could prove all of Dibaji's allegations defendants still could not prove sexual harassment." His reply brief is even more terse: "The defamation claim was based on the publication of Dibaji's complaint and the finding that Appellant Ku committed sexual harassment. Appellant Ku will prevail in the defamation cause of action because there was no evidence of sexual harassment against him."
The argument falls short of what is required to overturn a presumptively correct ruling. (See Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Ku neither analyzes the legal sufficiency of his defamation claim, nor demonstrates that he introduced evidence below sufficient to make a " ' "prima facie showing of facts to sustain a favorable judgment" ' " were his evidence credited. (See Navellier, supra, 29 Cal.4th at pp. 88-89.) "To prevail on a claim for defamation, plaintiff must show four elements: that defendants published the statements; that the statements were about plaintiff; that they were false; and that defendants failed to use reasonable care to determine the truth or falsity." (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470 (Hecimovich). We cannot even tell what allegedly defamatory communication(s) Ku contends were made (nor to whom), much less how the defendants failed to use reasonable care in determining the truth of whatever it was they supposedly said. And the factual assertions in Ku's brief, such as they are, have no record citations. In short, Ku's appellate briefing contains no meaningful, cognizable legal argument we can evaluate on his probability of prevailing. That alone is reason to affirm.
In addition, Ku does not meaningfully rebut defendants' argument that their allegedly defamatory statements (whatever they were) are privileged under Civil Code section 47, subdivision (c). (See, e.g., Comstock, supra, 212 Cal.App.4th at p. 953; Hecimovich, supra, 203 Cal.App.4th at pp. 471-472.) Citing a single case where this defense was held to apply (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538-1541), Ku asserts—again, without any record citation or support—that "An Inference of bad faith on the parts of Respondents [university] and its officers can be made when they knowingly fabricated the charges against Appellant Ku. It is accepted that bad faith or malice would defeat the claim of privilege and common interest." This answer to defendants' privilege argument is even more cursory than the one we rejected as "insufficient" in Hecimovich. (See Hecimovich, at p. 472.)
DISPOSITION
The order striking the complaint is affirmed as to the first cause of action for defamation, and is reversed as to the second through fifth causes of action. Plaintiff shall recover his costs on appeal from the university defendants.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.