Opinion
G058854
05-25-2021
GREGORY BURKE, Plaintiff and Appellant, v. THOMAS N. ROBINSON et al., Defendants and Respondents.
Gregory Burke, in pro. per., for Plaintiff and Appellant. Beach Law Group, Thomas E. Beach, Darryl C. Hottinger, and Eligio J. Luevanos for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00882380) OPINION Appeal from a judgment of the Superior Court of Orange County, Layne H. Melzer, Judge. Reversed and remanded. Gregory Burke, in pro. per., for Plaintiff and Appellant. Beach Law Group, Thomas E. Beach, Darryl C. Hottinger, and Eligio J. Luevanos for Defendants and Respondents.
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Gregory Burke appeals from the summary judgment entered in favor of defendants Newport Beach Aquatics, Inc., a swim club affiliated with his son Griffin's public high school (the Club), and five current or former members of the Club's board of directors, Thomas N. Robinson, Dean Crow, James Fowler, John Dobrott and Park Eddy (the Board), on his claim for intentional infliction of emotional distress. Burke's claim arose out of defendants' decision to terminate his son Griffin's membership in the Club based on a finding of sexual misconduct, without undertaking any investigation of the issue or complying with the Club's own due process requirements. Burke alleges the Club and its directors did so in bad faith, for the purpose of silencing his own complaints about the Club's coach and other swimmers.
Burke contends the court erred in concluding there was no triable issue of fact on the first two elements of his claim: (1) that the defendants' conduct was outrageous, and (2) that defendants intended to cause Burke emotional distress or acted with reckless disregard of the probability that he would suffer emotional distress. We agree and reverse the judgment.
Because we conclude the parties' original filings demonstrate there were triable issues of fact that prevented the entry of summary judgment, we need not address Burke's additional assertion that the trial court abused its discretion by refusing to consider the additional evidence he submitted shortly before the continued hearing date.
The trial court reasoned that the undisputed evidence showed "Griffin was dismissed from the swim team based on complaints against him," which did not constitute outrageous conduct as a matter of law, and that Burke's evidence failed to "establish that Defendants believed that the accusations against Griffin were false and nevertheless levied such accusations with an intent to cause Plaintiff emotional distress."
We disagree with the trial court's conclusions.
Burke's claim is not based on defendants' dismissal of his teenaged son from the swim club—which he agreed in his briefing and during oral argument would not qualify as outrageous conduct standing alone. Instead, Burke's claim is that these school-affiliated Club officials improperly used relatively benign accusations against Griffin as a pretext to support a finding that he had engaged in "sexual harassment" or "sexual abuse" sufficient to terminate his club membership—and that they did so in an effort to silence Burke's own complaints relating to the Club and its coach. Thus, it is not just the Board's willingness to believe the complaints made against Griffin without any investigation, but also its finding that the misconduct involved sexual misconduct that lies at the heart of Burke's complaint. The Board's failure to acknowledge, let alone explain, its actions supports an inference that the Board acted recklessly and in bad faith. That precludes summary judgment in the Board's favor.
Contrary to the Board's position, Burke's claim does not require evidence that the defendants intended to cause him emotional distress. It is sufficient if they acted with reckless disregard of the probability that Burke would suffer emotional distress. If, lacking any reasonable basis, the defendants labeled Burke's teenaged son a sexual miscreant in order to curtail Burke's bothersome advocacy related to the Club, such conduct could be sufficient to meet the reckless disregard standard. The court consequently erred in granting the motion for summary judgment.
FACTS
Burke alleged a cause of action for intentional infliction of emotional distress against Newport Beach Aquatics, Inc. (the Club) and five members of the club's board of directors, Thomas N. Robinson, Dean Crow, James Fowler, John Dobrott and Park Eddy.
In his operative third amended complaint, Burke alleged that his son, Griffin, who swam for Newport Harbor High School, and also for the related Club team, was subjected to harassment by Trevor Basil, the head coach of both swim teams, in early 2014. Burke complained to Basil about his misconduct, and the coach allegedly responded by intensifying his harassment of Burke's son.
Specifically, Burke alleged that in the summer of 2014, Basil engaged in an effort to pressure and intimidate Burke's son—then a 15-year-old high school sophomore—to end his relationship with a female swimmer on the team, apparently at the behest of her mother. In July 2014, Burke complained to board member Fowler that Basil was harassing and mistreating Griffin and improperly involving himself in what Burke believed was a "parenting issue."
Although the problem appeared to temporarily abate when the relationship between Griffin and the female swimmer ended, tensions flared again at the beginning of November 2014. On November 14, Burke sent an e-mail to Basil complaining that the female swimmer with whom Griffin had been involved was "currently harassing" him.
In his e-mail, Burke reminded Basil that the problem stemmed from the situation that arose during the summer when the swimmer's mother had enlisted Basil's help to break up the relationship between the two swimmers. Burke claimed that since Griffin and the female swimmer had ended their relationship, she had been harassing Griffin, she was "actively trying to turn the other female swimmers against Griffin," and she had recently expressed a desire to get him "kicked off" the swim team. Burke requested that the matter be addressed internally in accordance with the Club's code of conduct.
Rather than initiating such an investigation, the Club terminated Griffin's membership that same day, claiming he had violated specific USA Swimming Code of Conduct rules as the basis for its decision. The cited rules related to sexual misconduct.
In his complaint, Burke alleged that the defendants "falsely accuse[d his] son of sexual misconduct to silence [Burkes's] complaints and avoid an investigation by the high school into the conduct of Coach Basil." He further alleged that defendants allegedly "intended to harm [him] with the false accusation, confident that by maligning his son [he] would be so mentally and emotionally shattered that he would simply walk away and stop his complaints."
Burke also alleged he then "looked further into why the Defendants would make such a patently false accusation, and, in his investigation, discovered that [the swim coach] had been sending lewd and inappropriate text messages [to] some of the male swimmers . . . ." He further alleged that as a consequence of that revelation, Basil was forced to resign as Club coach and the swim club was "completely dissolved."
The Club and the board members moved for summary judgment in October 2018, arguing (1) Burke could not establish they had acted outrageously by dismissing his son from the Club based on third-party complaints about his conduct; (2) Burke could not establish the board members acted with the intention of causing him emotional distress when their intention was to protect other Club members from his son's sexual harassment; and (3) Burke could not establish they acted with malice as is required when the cause of action arises out of a communication protected by qualified privilege pursuant to Civil Code section 47, subdivision (c).
In support of their motion, the Club and the Board submitted declarations of the board members which explained the circumstances leading up to the termination of Griffin's membership in the Club.
According to the declaration of board member Crow, Basil informed him on or about November 1, 2014, that a female swimmer had complained to Basil via text that '"Griffin is out of control and I can't do anything and neither can anyone else,"' and that he is '"laying on me and other people had to get him off of me . . . [a]nd he can't keep his hands to himself."' Crow stated that, three days later, Basil also informed him he had received a letter from the father of that female swimmer, relating that Griffin had subjected her to inappropriate conduct during a swim meet on November 1; that conduct included coming up behind her and putting his face close to hers, and then sitting on her lap while she was talking to another male swimmer, despite her protests. The letter additionally complained about another swim meet incident during which Griffin allegedly "again put his hands on [the female swimmer] and shoved her from behind."
On November 13, Crow received an e-mail from the mother of the female swimmer Griffin had previously been involved with. According to Crow, the mother's e-mail "corroborat[ed the other swimmer's and her father's] complaints about Griffin Burke (and as a secondary matter inform[ed] [Crow] that her daughter . . . received a death threat from Griffin's sister and that the police had become involved)."
A copy of the mother's e-mail was attached as an exhibit to Crow's declaration. The e-mail indicated the alleged death threat was "the reason" she was contacting Crow, and she insisted that she be apprised of "any information that you have now or in the future that has any influence on the safety of my daughter."
The mother's e-mail then referenced "another subject, related to the Burke situation," which she characterized as the "accused sexual harassment of our girls on the team by Griffin . . . ." The swimmer's mother claimed, "the girls . . . have complained they feel violated by Griffin and feel that nothing has been done to protect them." She asserted "our girls need to be protected from sexual and verbal harassment"; she did not describe any specific incidents of harassment. Contrary to Crow's claim, the mother's e-mail made no reference to claims made by other swimmers or any swimmer's father regarding Griffin's alleged misconduct on and around November 1.
The Club and the Board contend they relied on the mother's letter as the basis for their conclusion that "more than one girl . . . had been harassed by Griffin." They also contended the one female swimmer's complaint about Griffin's behavior at the November 1 swim meet was "backed up" by the mother's letter.
Crow's declaration states the mother's letter "finalized our business decision to conclude Griffin's membership" in the Club, based on its "'zero tolerance' sexual harassment policy." Thus, "a letter was drafted and sent to his legal guardian (and father) Gregory Burke on November 14, 2014" (i.e., the day after the mother sent her e-mail.) The letter cited Griffin's "violation of Article 304.3.8.A-D of the USA Swimming Code of Conduct and the Newport Beach Aquatics Code of Conduct" as the basis for the Board's action.
Crow also explained that the Club has a "business relationship with Newport Harbor High School," and he therefore believed the high school's principal "would have an interest in protecting the high school's female swimmers from sexual harassment by Griffin." He therefore informed the principal in writing of the Club's decision and its basis.
Crow denied being aware of Burke's November 14 complaint to Basil at the time the board members decided to terminate Griffin's membership in the Club, although he acknowledged, "The Board was, of course, concerned that one of our member's siblings made a death threat against another member and that there was discord between [the female swimmer] and Griffin." As noted in their motion, the Club and board members at that time viewed Burke as both "vocal and litigious."
Crow declared it was only after Griffin's dismissal from the Club that he learned Burke had discovered Basil's inappropriate text messages to male swimmers on November 15; Crow did not deny he was aware of the issue himself. Crow stated Basil resigned as swim coach on November 18, 2014.
The other board members' declarations—which are essentially identical—acknowledge they participated in the "business decision" to terminate Griffin's membership in the Club after Crow informed them of what he had learned from Basil. They state Griffin's termination was based on the complaint of the one female swimmer—as related by Basil to Crow, and in the letter from her father—combined with the e-mail from the other swimmer's mother which they viewed as "corroborating" that complaint and expanding it to other, unnamed, female swimmers. Each of their declarations also referenced the fact that the mother's e-mail had claimed Griffin's sister made a death threat against her daughter.
Like Crow, each of the other board members noted "[t]he Board was, of course, concerned that one of our member's siblings made a death threat against another member and that there was discord between [the allegedly threatened swimmer] and Griffin."
Each of the board members declared he did not learn that Burke had discovered the coach's inappropriate text messages until after Griffin was dismissed from the team; no one made any representations about when he learned about the texts.
None of the board members claims to have investigated either the alleged death threat made by Griffin's sister, or the specifics of the alleged discord between Griffin and the swimmer with whom he was once involved. Likewise, none of the board members claims to have engaged in any investigation of the incidents involving Griffin and the female swimmer on or around November 1. None explains the basis for his conclusion that Griffin's reported misconduct was sexual in nature; nor do they claim to have inquired whether the female swimmer herself viewed it as such.
In a subsequent investigation conducted by the high school, several female swimmers on the high school team (whose identities were not revealed) were interviewed, and all denied feeling uncomfortable with Griffin; none of the swimmers claimed to have been sexually harassed by him.
In his opposition to the summary judgment motion, Burke argued that the moving parties failed to satisfy their initial burden to negate an element of his case. Specifically, he asserted that the Club and the Board failed to produce any evidence supporting their finding that Griffin engaged in sexual misconduct as defined in the USA Swimming Code of Conduct (which they had specifically cited as the basis for terminating his Club membership). Burke argued they had made no showing that the single incident in which Griffin allegedly sat in the lap of a female swimmer on the pool deck satisfied the Code of Conduct's definition of sexual abuse or harassment—and thus there was a triable issue of fact regarding the reasonableness of the Board's conduct and its good faith in making that finding. In support of his assertion, Burke provided the court with the text of the USA Swimming Code of Conduct, including Article 304.3.8, the provision Griffin was found to have violated.
Although the Club's termination letter reflected that Griffin had generally violated Article 304.3.8, the rule specifically addresses four distinct categories of sexual misconduct—two of which could have no application to Griffin. The two categories of misconduct which might apply to him are those prohibiting (1) "[a]ny act of sexual harassment," which includes "unwelcome sexual advances, requests for sexual favors" or other "oral, written, visual, or physical conduct of a sexual nature . . . ." committed "by any person participating in the affairs or activities of USA Swimming" (Article 304.3.8, subd. (B)); and (2) "[a]ny peer-to-peer sexual abuse," which means "any unwelcome physical conduct of a sexual nature directed towards a minor athlete by another minor athlete" (Article 304.3.8 subd. (D)).
The first category refers to sexual conduct or advances to an athlete by a coach, or other adult or non-athlete member. The third category refers to a romantic or sexual relationship between an athlete and someone in a supervisorial or position of power in relation to the athlete. (Article 304.3.8, subds. (A) and (C).)
Burke argued the Board's failure to engage in any investigation of Griffin's alleged misconduct—or afford him due process—before labeling him a sex offender supports the inference board members were not acting in good faith when they terminated his Club membership. In making this argument, Burke relied on the Club's own Code of Conduct, which outlines the disciplinary process to be followed when a swimmer engages in "objectionable behavior" during any activity or function associated with the Club.
The Club's Code of Conduct states that before making a finding a swimmer has engaged in behavior that qualifies as either "Class 1" (defined as "behavior that is considered very severe and disruptive, possibly life threatening and/or in direct violation of government laws") or "Class II" (defined as "disruptive; having a detrimental effect on one's self, other members of the team, or the general public; causes significant damage to the reputation of the club and/or their coaches; leading to the possible injury of self or other persons"), the Club is required to hold a noticed hearing before a Disciplinary Committee comprised of three board members, at which the facts are presented; the swimmer and a parent or guardian are allowed to be present.
It is undisputed that no such hearing was afforded to Griffin. The female swimmer who complained about Griffin presented her claim about his behavior in a declaration; she stated it occurred during the course of a two-day swim meet over the weekend of November 1 and 2, 2014, when she was a 15-year-old freshman at Newport Harbor High School. She also said she never requested that Griffin's membership in the Club be terminated as a consequence of his conduct, and that no one from the Club had ever consulted her about that possibility.
Burke countered Crow's claim that the Club's termination of Griffin's membership could not have been an effort to stifle Burke's own advocacy on Club-related issues by asserting board members were aware of Burke's November 14 complaint to Basil when they terminated Griffin's membership. Burke offered evidence that the board members were aware of his earlier complaints about the situation, as well as the alleged impropriety of the coach's conduct during the summer of 2014.
Burke also offered evidence that the Club had a difficult history with coaches, having recently terminated the employment of two other coaches due to their inappropriate conduct with minor-aged swimmers. He declared that in August 2014, he had discussed with board member Robinson his concerns that Basil was engaging in similarly inappropriate conduct with the current swimmers, and Robinson stated he would look into it. Burke argued in light of that recent history, the Club had an incentive to try to bury his concerns about Basil, and thus had an incentive to terminate Griffin's membership as a means of thwarting Burke's desire to pursue his complaints about Basil's conduct.
The trial court granted the summary judgment motion, reasoning that the undisputed evidence showed "Griffin was dismissed from the swim team based on complaints against him," which as a matter of law fell short of outrageous conduct, and that Burke's evidence failed to "establish that Defendants believed that the accusations against Griffin were false and nevertheless levied such accusations with an intent to cause Plaintiff emotional distress."
DISCUSSION
1. Summary Judgment Standards
Any party to an action may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar).) The object of the summary judgment procedure is "to cut through the parties' pleadings" to determine whether trial is necessary to resolve their dispute. (Aguilar, at p. 843.)
"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) A defendant moving for summary judgment may satisfy the initial burden either by producing evidence of a complete defense or by showing the plaintiff's inability to establish a required element of the case. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 853.)
If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.)
In evaluating the summary judgment motion and opposition, the trial court "must consider all of the evidence and all of the inferences drawn therefrom." (Aguilar, supra, 25 Cal.4th at p. 856.) However, the moving party's evidence is strictly construed, while its opponent's evidence is liberally construed. (Id. at p. 843.) All reasonable inferences must be drawn in favor of the opposing party and "summary judgment cannot be granted when the facts are susceptible to more than one reasonable inference . . . ." (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)
On appeal, we review the grant of summary judgment on a de novo basis. (Aguilar, supra, 25 Cal.4th at p. 860.)
2. The Propriety of Summary Judgment
The elements of a cause of action for intentional infliction of emotional distress are: "'(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.'" (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.)
In moving for summary judgment, the Club and the Board argued that Burke could establish neither of the first two elements. Specifically, they contended (1) Burke could not prove they had acted outrageously by dismissing his son from the Club based on third-party complaints about his conduct; (2) he could not prove the Board intentionally acted to cause him emotional distress; and (3) he could not prove the Board acted with malice as is required when the cause of action arises out of a communication protected by qualified privilege pursuant to Civil Code section 47, subdivision (c).
a. Outrageous Conduct
In granting summary judgment, the trial court seems to have analyzed the primary issue in the manner suggested by the Club and the Board: if the board members had been informed of complaints about Griffin's behavior toward one or more female swimmers, their decision to dismiss him from the Club as a matter of law was not outrageous. The court found "the evidence shows that Griffin was dismissed from the swim team based on complaints against him," which "falls far short" of the outrageous conduct necessary to support a claim for intentional infliction of emotional distress.
As Burke points out, the ruling fails to address his actual claim, which focused on the Board's finding that Griffin had engaged in sexual misconduct as a justification for the termination of his Club membership. Burke argues there is a significant gap between the Board's willingness to believe the factual claims they had been told another swimmer made against Griffin, and its conclusion that Griffin was guilty of sexual misconduct.
The gap is significant here. The gravamen of Burke's complaint is not that the board members found Griffin engaged in the conduct described by the female swimmer, or that they dismissed Griffin from the Club; it is that the Board effectively convicted Griffin of sexual misconduct without conducting the hearing its own rules required, and further that they did so for the specific purpose of thwarting Burke's desire to initiate an investigation into the Club's alleged dysfunction.
The Club and the board members demonstrate in their moving papers they were aware alleged sexual misconduct involves sensitive issues. The board members all state in their declarations the Club had a "zero tolerance" attitude toward sexual harassment, and they were concerned about protecting the Club from lawsuits "based on sexual harassment that we were made aware of but did not act upon."
Board member Crow also declared that, based on the Club's status as a '"school connected organization,"' he believed it was appropriate to report a finding of sexual misconduct to the principal of Newport Harbor High School. As Crow explained, he felt the principal "would have an interest in protecting the high school's female swimmers from sexual harassment by Griffin, if any was determined to have occurred during school hours upon an appropriate investigation."
But despite their implicit recognition that any finding of sexual misconduct could have serious adverse consequences for Griffin, neither the Club nor the Board explained in their moving papers how or why they determined the single complaint of misconduct they were aware of was true. It is therefore not beyond dispute that the board members failed to act reasonably or in good faith when they ended Griffin's team membership without any apparent investigation or analysis of the complaint.
Because the Club and board members failed to explain in their moving papers why they concluded the single complaint made by a female swimmer amounted to sexual misconduct pursuant to the USA Swimming Code of Conduct, or to demonstrate they had sufficient evidence before them to justify such a finding as a matter of law, they failed to sustain their initial burden of countering Burke's claim that they made such a finding in bad faith. As a result, they failed to meet their initial burden of establishing Burke's inability to prove the outrageous conduct element of the case. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 853.) Thus, the burden was never shifted to Burke to raise a triable issue of fact relating to that element.
This is not a factual finding.
In any event, even if their initial showing were enough to shift the burden, Burke's evidence was sufficient to demonstrate triable issues of fact on the point. Among other things, Burke submitted evidence demonstrating that the Board engaged in no investigation of Griffin's alleged misconduct. The evidence is undisputed the Board, as required by its own rules, failed to seek any first-hand account from the female swimmer of what occurred at the November meet; it also failed to ascertain whether Griffin's conduct was perceived by anyone present at the time to be sexually inappropriate. Lastly, and perhaps most importantly, they failed to speak to Griffin about the accusation.
Burke argued the Board's failure to engage in any investigation, or to afford Griffin the due process mandated by the Club's own Code of Conduct, was sufficient to support an inference that its members were more interested in a rush to judgment than a search for the truth. We agree these circumstances raise a triable issue of fact.
The Club and its Board argue that their failure to investigate the female swimmer's claim against Griffin, and to afford him required due process, is irrelevant to Burke's cause of action because whatever duty they had to do those things would have been owed to Griffin exclusively, not to his father. But Burke's claim is not grounded on the breach of that duty. He emphasizes the Board's failure to investigate and comply with required due process as evidence of bad faith, not to prove an element of his claim. The evidence is relevant and appropriate for that purpose. (See Safeco Ins. Co. of America v. Parks (2009) 170 Cal.App.4th 992, 1003, 1006 [explaining that the failure to conduct an investigation before making a decision, where there is a duty to so, is sufficient to demonstrate bad faith].)
We also reject the Club and board members' related assertion that the termination of Griffin's Club membership cannot support Burke's claim for intentional infliction of emotional distress because the termination "was not directed at [him]." The assertion begs the question. Where, as here, the circumstances surrounding the termination suggest it may not have been done for the reason claimed, we are obligated to draw all available inferences against the Club and the Board. Among the available inferences is that the termination was done with the intention to affect Burke's conduct.
We consequently conclude the Club and its board members were not entitled to summary judgment on the ground that Burke could not establish their conduct was sufficiently outrageous.
b. Intent
The Club and the Board also argued they were entitled to summary judgment because Burke could not establish they acted with the intent to cause him emotional distress. They contended that because Burke's distress (and hence his cause of action) arose from their e-mail informing him of the termination of Griffin's Club membership, they were entitled to rely on the qualified common interest privilege under Civil Code section 47, subdivision (c). Thus, they asserted Burke should be required to demonstrate they acted with actual malice toward him.
We address the second point first. Civil Code section 47, subdivision (c), specifies the privilege applies to "a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information."
Under the qualified privilege, the defendant generally bears the initial burden of establishing that the statement in question was made on a privileged occasion; if the defendant succeeds, the burden shifts to the plaintiff to establish that the statement was made with '"actual malice,' that the conduct was motivated by hatred or ill will." (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 90.)
Burke argues this privilege applies only to defamation cases, and thus has no application to his claim for intentional infliction of emotional distress. We disagree. As explained by our Supreme Court in in Silberg v. Anderson (1990) 50 Cal.3d 205, 212, although the litigation privilege of section 47 was originally enacted with reference to defamation, it is now applicable to any communication, whether or not it amounts to a publication, and to all torts except malicious prosecution.
Having said that, we note—as the Club and its board members acknowledge—it is not clear that Burke's cause of action arises out of a communication. "Because the litigation privilege protects only publications and communications, a 'threshold issue in determining the applicability' of the privilege is whether the defendant's conduct was communicative or noncommunicative. [Citation.] The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058 (Rusheen).)
Here, we believe the gravamen of Burke's cause of action is the Board's decision to terminate Griffin's Club membership for sexual misconduct, rather than its communication of that decision to Burke. It is the decision itself that is alleged to be wrongful, not the fact the Club thereafter sent its decision in writing to Burke. Burke's distress would be the same whether he learned of the decision from the Club via its Board, or from some other source. (See Equilon Enterprises v. Common Cause, Inc. (2002) 29 Cal.4th 53, 67-68 [explaining, in the anti-SLAPP context, that a cause of action arises from a communication when the communication itself is alleged to be the wrongful act].)
Because the allegedly wrongful decision to terminate Griffin's Club membership due to his sexual misconduct was not "communicative in its essential nature" (Rusheen, supra, 37 Cal.4th at p. 1058), a cause of action based on that wrongful act would not trigger protection under the privilege claimed by the Board.
In any event, it is not clear to us that application of the privilege would change our analysis. As explained in Taus v. Loftus (2007) 40 Cal.4th 683, "actual malice" in this context is essentially the same as the standard for establishing intent in a cause of action for intentional infliction of emotional distress: "'"The malice necessary to defeat a qualified privilege is 'actual malice' which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights (citations)."'" (Id. at p. 721.)
So the question we must ultimately answer is whether there is a triable issue of fact related to why the Club and the Board terminated Griffin's Club membership. Each of the board members states in his declaration the decision to terminate Griffin's membership was made out of "concern [for] the safety and protection of our members as a whole, the prevention of sexual harassment and abuse, as well as for the potential liability of the organization would face if a female swimmer took action against the club based on sexual harassment that we were made aware of but did not act upon." Each board member also denies harboring any "hatred or ill will" against either Burke or Griffin.
While that initial showing may have been sufficient to shift the burden of proof back to Burke, we conclude he has demonstrated a triable issue of fact exists regarding the board members' motivation to find that Griffin had engaged in sexual misconduct, and to terminate his Club membership as a result.
The board members' own declarations raise questions about their motivations. While each board member claims the decision to terminate Griffin's membership stemmed from his concern about sexual harassment, each board member also states he was "concerned that one of our member's siblings made a death threat against another member and that there was discord between [the swimmer whose mother complained] and Griffin."
Those other concerns may have been legitimate; they may have even provided a reasonable justification for terminating Griffin's Club membership. But they do not support the Board's stated conclusion that Griffin's termination was necessary because he had engaged in sexual misconduct. Consequently, the fact that every board member mentioned those collateral concerns, combined with the fact that Griffin's termination came immediately after the Board learned of the alleged death threat and the escalating tensions between Griffin's family and the family of the other swimmer, supports the inference that the Board's termination of Griffin's Club membership may not have been for the reason its members claimed. That inference creates an issue of fact.
In addition, in his opposition, Burke offered evidence that the Board's abrupt termination of Griffin's Club membership may have arisen out of a belief that Burke would insist on delving into the Club's alleged dysfunction which could potentially reveal inappropriate conduct by its current coach. Burke also offered evidence which suggested the coach was engaging in objectively inappropriate text messaging with several male swimmers. While all the board members denied knowing that Burke had discovered those text messages before they terminated Griffin's membership, they did not directly deny their own knowledge of that information, or that they were concerned such inappropriate conduct might be taking place.
Although the trial court's ruling states that the board members' declarations claimed "they did not learn of Basil's inappropriate conduct with the students until after Griffin was dismissed from the swim club when Plaintiff sent an email on 11/15/14," that is not accurate. The board members' declarations are silent on when they learned of Basil's inappropriate texting with student swimmers. --------
As the trial court noted, the evidence submitted by Burke in support of his opposition—including his declaration in which he indicated he spoke with board member Robinson during the summer of 2014 about his concerns that Coach Basil was inappropriately involved with the swimmers' personal lives—raises a triable issue of fact about whether the Board was aware of that issue when it terminated Griffin's Club membership in November 2014. In light of that evidence, a jury could conclude the Board was concerned that Burke would shine an uncomfortable light on that issue if the tensions arising out of Griffin's former relationship once again flared up—and it was that concern, rather than alleged sexual harassment, which motivated their decision to terminate Griffin's Club membership.
The Club and the Board argue there is no basis to infer they would have been inclined to protect Basil if he were acting inappropriately, since the evidence is undisputed that they had recently terminated two other coaches based on similar concerns. We cannot agree. While the Board's demonstrated willingness to terminate a coach's employment in the past might support an inference that the Board would have been willing to do so again, that is not the only potential inference to be drawn from these facts. It is also plausible that the Board, having recently terminated two coaches for inappropriate behavior, would have been concerned the Club might not survive a third such problem in so short a time frame; thus, it could be motivated to discourage any inquiry which might reveal misconduct by Basil. Because the latter inference supports Burke's contention that the Board was motivated to silence him, it is the inference we are obligated to draw.
If the trier of fact were to draw that inference, the circumstantial evidence is sufficient to support the further inference the Club and the Board made their decision to label Griffin a sex offender as a means of derailing Burke's attempt to initiate any inquiry. Such conduct—accusing Burke's son of sexual misconduct as a way of silencing Burke—would support a finding that defendants acted with reckless disregard to the probability that Burke would suffer emotional distress.
For the foregoing reasons, we conclude the trial court erred by granting summary judgment to the Club and the Board.
DISPOSITION
The judgment is reversed. The case is remanded to the trial court for further proceedings. Burke is awarded his costs on appeal.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.