Opinion
E067362
06-11-2018
DAWN D. TURNBULL, Plaintiff and Respondent, v. SUZETTE DAVIS, Defendant and Appellant.
Cummings, McClorey, Davis, Acho & Associates and Ryan D. Miller for Defendant and Appellant. Law Offices of Robert D. Conaway and Robert D. Conaway for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1603896) OPINION APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed. Cummings, McClorey, Davis, Acho & Associates and Ryan D. Miller for Defendant and Appellant. Law Offices of Robert D. Conaway and Robert D. Conaway for Plaintiff and Respondent.
Plaintiff and respondent Dawn D. Turnbull sued Oro Grande School District (OGSD), Heather Griggs, and defendant and appellant Suzette Davis. Turnbull's third cause of action alleged a conspiracy to deprive Turnbull of her right of privacy. (42 U.S.C. § 1985(3).) The trial court denied Davis's anti-SLAPP motion, which pertained to Turnbull's third cause of action. (Code Civ. Proc., § 425.16.) Davis contends the trial court erred. We affirm the order denying Davis's anti-SLAPP motion.
All subsequent statutory references will be to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
The facts in this subsection are taken from the allegations in Turnbull's complaint. Griggs is the superintendent of OGSD. Davis is the superintendent of the Lucerne Valley Unified School District (LVUSD). Davis and Griggs are friends. Turnbull was a teacher in OGSD. Turnbull was on the school board of LVUSD, where she resided.
On June 10, 2015, in Turnbull's capacity as a school board member for LVUSD, Turnbull objected to a proposed salary increase for Davis. On July 31, 2015, Griggs placed Turnbull on paid administrative leave from OGSD due to Turnbull allegedly unlawfully accessing school lunch eligibility information in LVUSD. After the meeting wherein Turnbull was informed of her OGSD suspension, a coworker informed Turnbull that Davis gave Griggs "some paperwork to 'get [Turnbull] fired.' " Davis, in turn, asked Griggs for information about Turnbull that would undermine Turnbull.
On August 13, 2015, Griggs gave Davis a copy of a confidential off-work notice from Turnbull's medical provider. Davis gave the off-work notice to a LVUSD volunteer "who then posted on social media that [Turnbull] 'was about to get fired but went out on stress leave instead.' " In September, Turnbull filed a claim for damages against OGSD. OGSD rejected Turnbull's claim. In December, OGSD terminated Turnbull's employment.
In Turnbull's third cause of action, she alleges OGSD, Griggs, and Davis released Turnbull's "private medical information [, which] violated [Turnbull's] constitutional right to privacy." (42 U.S.C. § 1985(3).)
B. ANTI-SLAPP MOTION
Davis filed an anti-SLAPP motion. (§ 425.16.) The facts in this paragraph are taken from the allegations in Davis's motion. After May 13, 2015, Turnbull failed to attend LVUSD board meetings. Davis alleged, "In August she provided a doctor's note indicating [Turnbull] was 'excused from work,' but the note did not say [Turnbull] was excused from Board of Trustees' meetings." In September 2015 the LVUSD board declared Turnbull's seat vacant. In February 2016 voters recalled Turnbull.
It is unclear to whom "she" is meant to refer. --------
As to the first prong of the anti-SLAPP analysis—protected activity—Davis asserted that Turnbull was a public official due to her position as a member of the LVUSD board, and, therefore, Turnbull's doctor's note was a matter of public interest. Because the matter was one of public interest, Davis's actions were protected by the First Amendment.
In regard to the second prong of the anti-SLAPP analysis, Davis asserted Turnbull did not have a probability of prevailing on the merits of the third cause of action. First, Davis asserted Turnbull had a prior pending case, which involved a cause of action that was identical to the third cause of action in the instant case. Davis contended that Turnbull could not present duplicative causes of action in separate cases, and, therefore, the third cause of action must fail.
Second, Davis contended Davis had immunity for her official acts. Davis contended that even if she disclosed Turnbull's doctor's note for the purpose of embarrassing and humiliating Turnbull, Davis is immune from liability for that official act. Third, Davis asserted there is no privacy right in a doctor's off-work notice. Davis contended "[t]here is no medical history or medical conditions stated in the doctor's note. Even if there were, [Turnbull's] act of providing the excuse note to the public body she sat on constitutes a waiver of any privilege or reason for confidentiality that may have existed. . . . Therefore, there is no legally protected privacy interest that was violated."
Davis filed a request for judicial notice in support of her anti-SLAPP motion. The request included: (1) an April 15, 2016, complaint filed by Turnbull against LVUSD, Davis, Tom Courtney, John Buchanan, and Keri Gasper; (2) a printout from the website of the San Bernardino County Office of the Registrar of Voters reflecting Turnbull was recalled; (3) a printout of the docket from a family law case involving Turnbull; (4) a printout of a September 8, 2015, article from LucerneValleyLeader.com entitled, "Board vote: Turnbull voted off school board"; (5) a printout of a November 24, 2015, article from LucerneValleyLeader.com entitled, "LVUSD fires back at Turnbull attorney"; and (6) a printout of a February 17, 2016, article from LucerneValleyLeader.com entitled, "Turnbull recalled from office."
Turnbull objected to the request for judicial notice. There is nothing in the record indicating the trial court ruled on Davis's request for judicial notice.
C. OPPOSITION
Turnbull opposed Davis's anti-SLAPP motion. Turnbull asserted Davis's act was not a protected activity because it constituted retaliation. As to the second prong—probability of prevailing—Turnbull contended Davis was not immune from liability because Davis's acts were not official acts, they were personal acts. Next, Turnbull asserted the instant case is not identical to her prior case. Turnbull also asserted her case had merit, in that she has evidence Davis conspired to retaliate against her and "interfere in a property right."
Davis submitted a request for judicial notice in support of her opposition to the anti-SLAPP motion. The request included: (1) minutes of the April 15, 2015, LVUSD board of trustees special meeting, which reflected a vote approving Turnbull's censure and the board's request for Turnbull's resignation; (2) minutes of the May 13, 2015, LVUSD board of trustees meeting; (3) a list of the LVUSD board meeting dates from May 14, 2014, to October 6, 2016; (4) minutes of the June 10, 2015, LVUSD board of trustees meeting, which included a vote approving a resolution censuring Turnbull; (5) minutes of the June 19, 2015, LVUSD board of trustees special meeting, which included a vote approving of a letter requesting Turnbull's resignation; (6) minutes of the September 14, 2015, LVUSD board of trustees special meeting, which included an "[u]pdate regarding [the] three month absence of Trustee Turnbull from Board meetings and whether her office has become vacant pursuant to Government Code section 1170(g)." There is nothing in the record indicating the trial court ruled on Turnbull's request for judicial notice.
D. HEARING
The trial court held a hearing on Davis's anti-SLAPP motion. The trial court announced that its tentative ruling was to deny the motion due to Davis's failure to prove the alleged act constituted protected activity. The trial court said, "The allegations that support this cause of action aren't based on what went on at school board meetings, which certainly would be protected activity. Rather, the allegation is that this off-work slip from a doctor was obtained and distributed to someone who then posted it on social media. I don't think that is protected activity."
Davis asserted that Turnbull's absence from LVUSD board meetings was a matter of public interest. Davis alleged that Turnbull's doctor faxed an off-work notice "to the District" on September 9, and the "note was passed around at the board meeting as part of a public discussion about whether or not her seat should be deemed vacant or whether a recall election should happen."
The trial court said the cause of action was not based upon Davis's acts at a board meeting. Davis asserted a private communication can still be protected if it concerns a public issue. Turnbull responded by explaining that the off-work note should have been discussed in a closed session, not a public meeting, because it concerned a personnel matter. The court explained that the public wanted to know why Turnbull was not attending LVUSD board meetings.
Turnbull explained there were two acts by Davis. One of the acts was Davis informing Griggs of Turnbull allegedly unlawfully accessing data about school lunch benefits for disadvantaged children. That information provided by Davis led to Turnbull losing her teaching job with OGSD. Therefore, Davis interfered with the property right that Turnbull had in her teaching position with OGSD.
The trial court said, "I still don't see how this arises from protected activity." Davis argued that Turnbull's absence from LVUSD school board meetings was a matter of public interest that was reported upon in newspapers. The trial court denied the anti-SLAPP motion. The trial court ruled that an award of attorney fees would be inappropriate because the "motion was brought in good faith with legal argument."
DISCUSSION
A. ANTI-SLAPP MOTION
1. CONTENTION
Davis contends the trial court erred by denying her anti-SLAPP motion. (§ 425.16.)
2. LAW AND STANDARD OF REVIEW
The anti-SLAPP statute is designed to "encourage continued participation in matters of public significance" by stopping lawsuits that would otherwise chill a person's public participation due to abuse of the judicial process. (§ 425.16, subd. (a).) There are two steps to determining if a lawsuit is designed to curb the defendant's participation in matters of public significance.
The first step is examining the causes of action to determine if they arise from any act in furtherance of the defendant's "right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." (§ 425.16, subd. (b).) The second step is determining whether the plaintiff has a probability of prevailing on her claims. (§ 425.16, subd. (b).) If a cause of action arises from an act in furtherance of the defendant's right of petition or free speech and the plaintiff does not have a probability of prevailing, then the cause of action will be stricken. (§ 425.16, subd. (b).) We apply the de novo standard of review. (Park v. Board of Trustees of California State University System (2017) 2 Cal.5th 1057, 1067.)
B. PROTECTED ACTIVITY
1. LAW
An " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes . . . (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
"In deciding whether the initial 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)" (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) " 'The mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] . . . In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.' " (In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)
2. ACTS AT ISSUE
We seek to clarify the acts that comprise Turnbull's third cause of action. In Turnbull's third cause of action she alleges, "Public officials releas[ed] private medical information . . . violat[ing Turnbull's] constitutional right to privacy . . . ." Specifically, Griggs copied Turnbull's off-work note and transmitted it to Davis. These acts constituted a conspiracy that violated Turnbull's right of privacy. Accordingly, our discussion is focused on Davis's act of receiving the off-work note from Griggs on August 13, 2015.
3. ANALYSIS
The act of receiving a note is not a statement or writing made by Davis. Because Davis did not make a written or oral statement, Davis's alleged act is not protected as a written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. (§ 425.16, subd. (e)(3).)
Next, we examine whether the act of receiving a note is "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4).)
According to Turnbull's allegations, Davis gave the off-work notice to a LVUSD volunteer, Keri Gasper, "who then posted on social media that [Turnbull] 'was about to get fired but went out on stress leave instead.' " Thus, there is no direct communication by Davis. Rather, Davis accepted a letter from Griggs, then Davis gave the letter to Gasper, and Gasper exercised her right of free speech. Gasper's speech was not about Turnbull's absence from the LVUSD board meetings. Rather, Gasper's speech consisted of an allegation that Turnbull avoided being fired from OGSD by taking a medical leave of absence.
We examine whether there was a public issue in August 2015 concerning Turnbull's employment with OGSD. In a declaration, Davis declared: (1) Turnbull last attended a LVUSD board meeting on May 13, 2015; (2) Turnbull's absence was "a topic of much conversation during Board meetings"; (3) on August 5, Turnbull submitted an off-work note; and (4) on September 1, the LVUSD board declared Turnbull's seat vacant.
Davis does not explain, what, if anything, was of interest to the public concerning Turnbull's employment with OGSD. As a result, Davis has failed to demonstrate that her alleged act of accepting the off-work note from Griggs, which led to Gasper's speech about Turnbull's OGSD employment, was a protected activity. Accordingly, we conclude the trial court did not err.
Davis contends her act of disclosing Turnbull's doctor's note constitutes protected activity because it concerned Turnbull's absence from the LVUSD board meetings. The flaw in Davis's argument is that the third cause of action does not pertain to Davis disclosing the doctor's note to the LVUSD board. Rather, Turnbull's third cause of action takes issue with Davis receiving the doctor's note from Griggs and then giving the note to Gasper.
For example, Davis argues that because Turnbull was a public figure, the disclosure of the doctor's note was a public issue. Davis then discusses how Turnbull's failure to attend LVUSD board meetings concerned the public. What is unclear, and what Davis fails to address, is how Turnbull's position as a public figure within LVUSD made Turnbull's employment with OGSD a matter of public concern. Because Davis has not articulated an argument directly addressing why the allegations in the third cause of action concern protected activity, we find Davis's position to be unpersuasive.
Next, Davis faults Turnbull for not providing evidence that Griggs gave the off-work note to Davis, who in turn gave the note to Gasper, who then posted commentary on social media. Whether there is merit to Turnbull's case is the second-prong of the anti-SLAPP analysis. When examining the second-prong, the plaintiff must establish that her case has "minimal merit" by presenting a "prima facie showing of [evidence] to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Navellier v. Sletten, supra, 29 Cal.4th at p. 93.) We have not reached the second prong of the anti-SLAPP analysis because Davis has failed to meet her burden of demonstrating that the allegations concern protected activity.
As our Supreme Court has explained, "[T]he moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged." (Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1061, italics added.) In other words, the first prong concerns the allegations, while the second prong concerns the evidence or lack thereof. Therefore, we are not persuaded by Davis's assertion that, due to Turnbull's failure to provide evidence, this court should conclude Davis engaged in a protected activity.
C. REQUEST FOR DISMISSAL
Turnbull requests Davis's appeal be dismissed as moot. Turnbull explains that she filed an amended complaint. As a result, Turnbull reasons that this appeal pertaining to the superseded original complaint is moot. (See JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 [an amended pleading supersedes the prior pleading].) Turnbull requests this court take judicial notice of the amended complaint, but fails to provide a copy of the amended complaint. Because Turnbull has not provided this court with a copy of the amended complaint, we deny the request for judicial notice. (Evid. Code, §§ 452, subd. (d), 453, subd. (b).)
Further, we deny Turnbull's request to dismiss the appeal. We do not have a copy of the amended complaint. Additionally, Turnbull does not argue that she omitted the third cause of action from the amended pleading. Instead, Turnbull argues that the original complaint is defunct now that an amended pleading has been filed, and, therefore, this appeal pertaining to the superseded original complaint is moot.
If Turnbull's argument were accepted, it would undermine the anti-SLAPP statute. A plaintiff who erroneously obtained a favorable ruling on an anti-SLAPP motion could avoid appeal by amending her complaint. The amended complaint would trigger a second anti-SLAPP motion, and possibly a second erroneous ruling. The cycle could continue. By the time the defendant successfully reached an appellate court, the plaintiff would have succeeded in its goals of delaying the defendant, distracting the defendant, and depleting the defendant's energy and resources. Such a procedure would frustrate the Legislature's objective of providing quick relief in SLAPP suits. (JKC3H8 v. Colton, supra, 221 Cal.App.4th at p. 478.) Accordingly, we reject Turnbull's argument. We deny Turnbull's request for dismissal of Davis's appeal.
DISPOSITION
The order is affirmed. Respondent is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.