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Maples v. Kern High Sch. Dist.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 1, 2017
No. F070867 (Cal. Ct. App. Feb. 1, 2017)

Opinion

F070867

02-01-2017

JIM MAPLES et al., Plaintiffs and Appellants, v. KERN HIGH SCHOOL DISTRICT et al., Defendants and Respondents.

Rodriguez & Associates, Daniel Rodriguez, Joel T. Andreesen, John A. Kawai; Esner Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Appellants. McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Anthony N. DeMaria for Defendants and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CV-282158)

OPINION

APPEAL from an order of the Superior Court of Kern County. Sidney P. Chapin, Judge. Rodriguez & Associates, Daniel Rodriguez, Joel T. Andreesen, John A. Kawai; Esner Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Appellants. McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Anthony N. DeMaria for Defendants and Respondents.

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Plaintiffs coached football at Garces Memorial High School (Garces) during the 2013 season. They have sued Kern High School District (District), its superintendent Donald Carter, its director of school support services Stan Greene, and others for illegally distributing a secretly-made tape recording of a coaches' meeting. District characterizes the tape recording as evidence of potential recruiting violations that it was obligated to provide to the appropriate governing body. In contrast, the coaches contend the recorded conversation pertained to Garces students who would be playing during the upcoming football season, not improper recruiting. They argue the propriety of their action was confirmed when the matter was investigated and the head coach reinstated after a short administrative leave.

Defendants filed a special motion to strike under California's anti-SLAPP statute, contending that (1) the grounds for the lawsuit arise from protected activity—specifically, conduct involving their rights to free speech and to initiate or participate in an official proceeding—and (2) the coaches failed to establish a reasonable probability they would prevail on any of their claims. (§ 425.16, subd. (b)(1).) The trial court agreed and granted the motion to strike all the claims against District, Carter, and Greene.

Code of Civil Procedure section 425.16. Further statutory references are to the Code of Civil Procedure unless otherwise noted. The acronym "SLAPP" stands for strategic lawsuit against public participation.

First, as a matter of statutory construction, we conclude the delivery to the Central Section of the California Interscholastic Federation (CIF) of the transcript of the tape recording constituted protected activity because CIF proceedings relating to potential recruiting violations are an "official proceeding authorized by law" and the matter of recruiting high school football players is "an issue of public interest." (§ 425.16, subd. (e)(1), (e)(4).)

Second, we conclude the exception that takes criminal activity outside the protections of section 425.16 does not apply in this case. The narrow exception recognized in Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) applies only where "the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence." (Id. at p. 316.) In the present case, defendants made no concession and the evidence is not conclusive.

Third, we conclude the admissible evidence presented by the coaches was insufficient to establish they had a reasonable probability of prevailing on any of their causes of action. The single declaration presented by the coaches was eviscerated by the evidentiary objections made by defendants and sustained by the trial court; those evidentiary rulings are not challenged in this appeal.

We therefore affirm the order granting the motion to strike.

FACTS

Plaintiff Jim Maples (Maples) was the head coach of varsity football at Garces during the 2013 season. Plaintiffs Mike Petrini, Jerry Pendleton, Mike Carlovsky, Tim Burich, Erik Duncan, and James Maples also were football coaches at Garces.

On July 1, 2013, at 5:30 p.m., plaintiffs and another football coach, defendant John Weber, met at Bill Lee's Restaurant in Bakersfield in a private room with a door that slid shut, creating a zone of physical and sensory privacy. During the meeting, the coaches discussed many topics, including the upcoming football season, incoming freshmen football players at Garces, and a nonprofit football booster club that was being formed at Garces.

Weber recorded the meeting without the knowledge or consent of the other attendees. In mid-July 2013, District received a copy of the recording from Weber. On July 26, 2013, District contacted Garces school administrators to request a meeting. Garces school administrators then met with defendants Carter and Greene, who provided the administrators with a copy of a transcript of the recording, but not a copy of the recording itself. Garces administrators met with Maples on July 28, 2013, and told him that the July 1, 2013 meeting had been tape recorded and they were placing him on administrative leave.

On July 29, 2013, District and Greene mailed a report, which included a copy of a transcript of the recording, to the CIF and to the Diocese of Fresno (Diocese), which operates Garces. Greene's September 2014 declaration stated that he "was provided a copy of a recording" and he recognized one of the speakers as Maples. Greene also stated that "the transcript of the recording that had been provided to me was delivered to the Diocese ... as well as the offices of [CIF] to investigate and/or determine if any violations had occurred." Greene stated that, after reviewing the recording, he was concerned it was evidence of potential violations of the CIF constitution and bylaws relating to (1) pre-enrollment contact and (2) the payment of tuition as an inducement to attend and play football at Garces.

On July 31, 2013, Maples met in Fresno with personnel from the Diocese and heard the tape for the first time. Plaintiffs alleged that the Diocese's representatives, after reviewing the tape several times, concluded that Maples had done nothing wrong. On August 6, 2013, Maples was informed that the administrative leave would be lifted and he would be reinstated as head football coach at Garces.

PROCEEDINGS

In June 2014, plaintiffs filed a complaint for damages against District, Carter, and Greene (collectively, District defendants). Plaintiffs also named John Weber; CIF; James Crichlow, Kern County Superintendent of Schools; and Kern County Board of Education as defendants. The complaint listed nine causes of action, including violations of the right to privacy, eavesdropping and electronic recording under Penal Code section 637.2, defamation, intentional infliction of emotional distress, negligence, and civil conspiracy. The complaint also referred to a violation of the federal prohibition on the interception and disclosure of oral communications set forth in 18 United States Code section 2511.

In September 2014, District defendants filed a motion to strike under section 425.16, asserting the causes of action alleged against them arose from protected activity—namely speech and petitioning activity in forwarding a recording to the proper authorities. District defendants also contended plaintiffs were unable to provide sufficient evidence to establish a probability of prevailing on any cause of action asserted against any of them.

Plaintiffs filed an opposition to the motion to strike, which was supported by a declaration from Maples. His declaration noted that plaintiffs had not been permitted to conduct discovery pending the hearing on District defendants' motion to strike. Maples stated that what District represented to be a transcript of the tape recording contained false transcriptions. Maples asserted that the names of Garces students were replaced with names of students at other schools and these errors provided the basis for the interpretation that improper recruiting was being discussed. Maples stated the errors in transcription could not reasonably be made by persons listening to the recording, which he contends supports the inference that the wrong names were used with the intent to mislead or with a reckless disregard for the truth. The declaration of Maples also stated:

"[District], Stan Greene, and Donald Carter have expressed ill will towards me on prior occasions, accusing me of unsportsmanlike conduct such as 'running up scores.' Given this history, I am convinced that [District], Greene and Carter were motivated by malice and likely saw this recording and falsified transcript as their coup de grace against me and my fellow Garces coaches."

District defendants' reply included objections to the declaration of Maples. Plaintiffs filed a written response to the objections.

On October 7, 2014, the trial court held a hearing on (1) the motion to strike under section 425.16, (2) a pending demurrer filed by District defendants, and (3) Carter's motion to strike the prayer for punitive damages. In a minute order issued in November 2014, the trial court stated the District defendants' motion to strike was granted and they could pursue attorney fees and costs. The court sustained District defendants' evidentiary objections, except for a portion of the first objection. The minute order directed counsel for District defendants to submit proposed formal orders.

On November 21, 2014, the trial court signed and filed an order granting District defendants' motion to strike. The order struck each cause of action in plaintiffs' complaint "as these moving Defendants met their burden of demonstrating that the allegations against them arise out of protected activity and Plaintiffs have failed to meet their burden of demonstrating a probability of prevailing on their claims." The order also stated District defendants, as prevailing defendants under section 425.26, subdivision (c)(1), were entitled to recover their attorney fees and costs. The court also signed and filed an order sustaining in part and overruling in part District defendants' objections.

In January 2015, plaintiffs filed a notice of appeal.

DISCUSSION

I. Anti-SLAPP motion

A. Summary of the law

1. Statutory text

Section 425.16 provides an expedited procedure for dismissing lawsuits filed primarily to inhibit the valid exercise of the constitutionally protected rights of speech or petition. (§ 425.16, subd. (a).) Subdivision (b)(1) of section 425.16 provides:

"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 Constitution 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."

Applying this provision's elements to a motion to strike involves a "two-step inquiry." (Flatley, supra, 39 Cal.4th at p. 317.)

2. Step one protected activity

The first step addresses whether the moving party has carried his or her burden of showing that the challenged cause of action is one arising from a protected activity—that is, an activity "in furtherance of the person's right of petition or free speech." (§ 425.16, subd. (b)(1).) Subdivision (e) of section 425.16 provides a list of activities that fall within the scope of this statutory phrase. For instance, such activity includes any written or oral statement made before a judicial or "other official proceeding authorized by law." (§ 425.16, subd. (e)(1).)

If the challenged causes of action arose from activity covered by subdivision (e) of section 425.16, we complete the first step by determining whether the "assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected" by the anti-SLAPP statute. (Flatley, supra, 39 Cal.4th at p. 305.) This narrow exception for illegal conduct sometimes is referred to as the Flatley exception. (E.g., Collier v. Harris (2015) 240 Cal.App.4th 41, 57.) The Flatley exception applies only where "the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence." (Flatley, supra, 39 Cal.4th at p. 316; see Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [Flatley used the terms "illegal" and "illegality" to mean criminal, not any violation of a statute].) If the Flatley exception does not apply, the first step ends with the conclusion that the activity is protected, and it is appropriate to grant the motion to strike unless the plaintiff makes the required showings addressed in the second step of the anti-SLAPP inquiry.

3. Step two minimal merit of the claims

The second step of the inquiry examines whether "the plaintiff has established that there is a [reasonable] probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) In other words, a plaintiff can defeat an anti-SLAPP motion by stating and substantiating a legally sufficient claim. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) This is done by demonstrating the pleading is both legally sufficient and supported by a sufficient prima facie showing of facts that would sustain a favorable judgment. (Ibid.) When a plaintiff makes the required showings, the claims have the requisite merit to proceed. (See City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420 [second step of anti-SLAPP analysis prevents abusive SLAPP suits] (Vasquez).)

In this appeal, the plaintiffs' evidentiary showing, not the sufficiency of their pleadings, has been challenged by District defendants. Consequently, we consider whether the evidence submitted by plaintiffs, if credited by the trier of fact, is sufficient to sustain a favorable judgment. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)

4. Standard of review

"Review of an order granting or denying a motion to strike under section 425.16 is de novo." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) An appellate court must "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) Neither trial nor appellate courts weigh credibility or compare the weight of the evidence. (Soukup, supra, at p. 269, fn. 3.) "Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

B. Protected activity

Our inquiry into whether District defendants carried their burden of showing that the challenged causes of action arose from a protected activity begins with section 425.16, subdivision (e), where the Legislature identified the kinds of activity it meant to protect:

"As used in this section, '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: (1) any written or oral statement
or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (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, (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." (Italics added.)

Our Supreme Court has stated that these statutory categories "provide objective guidelines that lend themselves to adjudication on pretrial motion." (Vasquez, supra, 1 Cal.5th at p. 422.)

1. Writing made before an official proceeding authorized by law

District defendants contend that Greene's delivery of the transcript to the CIF falls within the first category even though CIF is not a governmental entity. They contend that an "official proceeding authorized by law" may be conducted by a private organization where the organization is created by operation of law and under the supervision of a governmental body. (See Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199 [hospital's peer review procedure qualifies as "'official proceeding authorized by law'"].) We agree that Kibler establishes that an official proceeding need not be conducted by a governmental body.

Here, the proceedings conducted by CIF exist because of Education Code sections 33353 and 35179. Therefore, we conclude CIF's proceedings are "official proceedings authorized by law" for purposes of section 425.16, subdivision (e)(1). We further conclude the delivery of the transcript qualified as a writing "made before" a proceeding by CIF even though an official proceeding had not begun. Submission of evidence or a report to a body responsible for investigating the matter is preparatory to, or in anticipation of, commencing official proceedings and thus is protected under subdivision (e) of section 425.16. (See Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569-1570 [reports of child abuse to child welfare agencies were protected by anti-SLAPP statute].) Plaintiffs do not directly dispute these applications of the language in section 425.16, subdivision (e)(1).

2. Free speech on an issue of public interest

Next, we consider Greene's delivery of the transcript to entities other than the investigatory body—namely, the administration of Garces and the Diocese. District defendants contend that if these deliveries are not considered protected reporting conduct related to an official proceeding, the deliveries constitute an exercise of their "constitutional right to free speech in connection with a public issue or an issue of public interest" for purposes of subdivision (e)(4) of section 425.16. We agree.

We conclude the public interest is implicated by the potential recruitment of local junior high students for high school football and the compensation of those recruits through payment of tuition. The fact that CIF exists and has rules prohibiting recruitment provides an adequate basis for inferring that the issues are of public interest. Furthermore, Garces was the employer of the coaches and had an interest in being informed about evidence presented to CIF about its football program. Similarly, the Diocese had an interest in being informed about matters involving one of its schools. Again, plaintiffs do not directly challenge this conclusion about public interest but rely on the criminal-activity exception that we address next.

In summary, District defendants have carried their burden of showing the challenged causes of action arose from protected activity covered by section 425.16, subdivision (e). The allegations regarding the delivery of the transcript to CIF, to the administration of Garces, and the Diocese are "the principal thrust or gravamen" of the challenged causes of action. (Martinez v. Metabolife Inter. Inc. (2003) 113 Cal.App.4th 181, 188, italics omitted.) Stated from the opposite perspective, those allegations about delivery are not "collateral allusions" or "only incidental" to the causes of action. (Ibid.)

C. Overview of Flatley's criminal conduct exception

1. Plaintiffs' contention

Plaintiffs contend that District defendants' actions are not protected by the statute because those actions were criminal. Plaintiffs' contention is based on Flatley's criminal conduct exception. Analytically, application of the Flatley exception is considered after the defendants have made the threshold showing that their activity falls within the categories of activity described in section 425.16, subdivision (e) and before the court proceeds to the second step of the anti-SLAPP inquiry.

2. Applicable principles

Flatley states not all speech or petition activity is constitutionally protected and specifically holds criminal acts are not protected constitutionally or by section 425.16. (Flatley, supra, 39 Cal.4th at p. 313.) Recently, the court reiterated the principles regarding illegal conduct established in Flatley, stating "we held that 'section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition.' (Flatley, [supra, 39 Cal.4th] at p. 317.)" (Vasquez, supra, 1 Cal.5th at p. 423.) The court emphasized that section 425.16 was designed to protect valid speech and petitioning activity, then stated:

"The City contends the illegal conflict of interest that infected the councilmember defendants' votes deprives them of protection under section 425.16. This assertion of illegality is premature. The first step of the anti-SLAPP analysis is limited to whether a claim arises from protected activity. We made it clear in Flatley that conduct must be illegal as a matter of law to defeat a defendant's showing of protected activity. The defendant must concede the point, or the evidence conclusively demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the first step. (Flatley, supra, 39 Cal.4th at pp. 316-318, 320.) [¶] We do not minimize the seriousness of the City's conflict of interest allegations. However, at this early stage of the litigation, [the] defendants vigorously dispute those allegations, both as a matter of law and a question of fact." (Vasquez, supra, 1 Cal.5th at p. 424.)

The disputes of fact and law that existed in Vasquez caused our Supreme Court to conclude the Flatley exception did not apply and, thus, the motion before it could not be resolved at the first step of the anti-SLAPP inquiry. (Vasquez, supra, 1 Cal.5th at p. 424.) The court concluded "the City's reliance on the alleged illegality of [the] defendants' conduct gains it no traction on the question of whether its cause of action arises from protected activity." (Id. at pp. 424-425.)

For example, a factual dispute existed because the defendant councilmembers denied any quid pro quo in connection with the campaign contributions from a waste collection company that subsequently received a contract from the city. (Vasquez, supra, 1 Cal.5th at p. 424.)

In summary, we interpret Flatley and Vasquez to mean that the test for determining the applicability of the criminal conduct exception is whether the defendants have conceded the point or, alternatively, whether the evidence conclusively demonstrates the conduct was criminal.

3. Cases involving criminal conduct

In Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696 (Lefebvre), the plaintiff sued his former spouse for malicious prosecution, false arrest, and similar claims based on her filing a false police report that accused him of threatening to kill her and their children. (Id. at pp. 699-700.) Knowingly filing a false report of a crime is a misdemeanor under Penal Code section 148.5. The trial court found the record conclusively established the defendant's statements to the police were "illegal activity" as that term was used in Flatley. (Lefebvre, supra, at p. 701.) The former wife did not contest that she submitted an illegal, false criminal report, but argued her report was absolutely privileged under Civil Code section 47, subdivision (b). (Lefebvre, supra, at pp. 703, 705.) The appellate court concluded that, under Flatley, whether her report was privileged under Civil Code section 47, subdivision (b) was irrelevant to whether the report was "protected activity" for purposes of the anti-SLAPP statute. The court also concluded that filing a false criminal report was an illegal activity, not a constitutionally protected exercise of the right of petition or free speech. (Lefebvre, supra, at p. 706.) As a result, the court affirmed the order denying the anti-SLAPP motion without reaching the question of whether the husband had demonstrated a probability of prevailing on his causes of action. (Id. at pp. 705-706.)

The analysis adopted in Lefebvre demonstrates an actual application of the Flatley exception. Ordinarily reporting a crime would qualify as protected activity under section 425.16, subdivision (e). The court concluded that the false report was "an illegal activity"—a term used in Flatley—and thus outside the protection of section 425.16. (Lefebvre, supra, 199 Cal.App.4th at p. 706.)

In contrast to Lefebvre, there are appellate cases involving criminal activity where the application of the Flatley exception was not reached because the defendants failed to meet their threshold burden of showing the acts from which the causes of action arose constituted protected activity within the meaning of the statute. (E.g., Malin v. Singer (2013) 217 Cal.App.4th 1283, 1303 [wiretapping and computer hacking alleged] (Malin); Gerbosi v. Gaims, Weil, West & Epstein (2011) 193 Cal.App.4th 435, 446 [wiretapping alleged] (Gerbosi).) In Malin, the acts underlying the plaintiff's civil rights and related emotional distress causes of action were computer hacking and wiretapping. The defendants argued that the plaintiff's claims arose from acts in furtherance of their right to conduct a prelitigation investigation. The court rejected this argument and concluded wiretapping and computer hacking did not fit any of the categories of protected activity defined in section 425.16, subdivision (e). (Malin, supra, at p. 1303.) As a result, the court concluded the defendants failed to meet their threshold burden of showing the causes of action arose from protected activity. (Ibid.) Following the same sequence of issues, the court in Gerbosi made the same determinations. Consequently, in each case, the defendants' failure to meet their initial burden meant the courts never reached the question of whether the Flatley exception applied.

An additional aspect of Malin and Gerbosi relevant to this appeal is how the courts dealt with the defendants' arguments that they were innocent. The court in Malin stated:

"Even if we were to accept [the defendants'] assertion that they were innocent of the criminal computer hacking and wiretapping allegations, their claim is 'more suited to the second step of an anti-SLAPP motion. A showing that a defendant did not do an alleged activity is not a showing that the alleged activity is a protected activity.' (Gerbosi, supra, 193 Cal.App.4th at p. 446.)" (Malin, supra, 217 Cal.App.4th at p. 1304; see Burke, Anti-SLAPP Litigation (The Rutter Group 2016) § 3:6, pp. 3-11 [legality of defendant's conduct is not focus of prong one].)

This statement, when considered with the test for applying the Flatley exception, further demonstrates that the application of the Flatley exception was not reached in either Malin or Gerbosi. Therefore, we reject plaintiffs' view that Malin and Gerbosi involved an application of the Flatley exception and are controlling in this case. Consequently, to complete the first step of the anti-SLAPP analysis, we turn to the record in this appeal, apply the test for the Flatley exception to that record, and determine whether District defendants conceded their activity was illegal or, alternatively, the evidence conclusively established District defendants' conduct violated a state or federal criminal statute.

D. Application of the Flatley exception

1. Disputes relating to Penal Code section 632

Penal Code section 632 defines the crime of recording or eavesdropping on confidential communications by providing:

"(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment."

In Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, the court stated: "A [Penal Code] section 632 violation is committed the moment a confidential communication is secretly recorded regardless of whether it is subsequently disclosed." (Id. at p. 164.) District defendants contend they were not involved in the recording of the coaches' meeting and, therefore, they did not violate Penal Code section 632. They support their position by referring to the portions of Greene's declaration stating he was not involved in the recording, was not aware the meeting would occur, and was not informed of the recording until after it had been made. Greene's declaration is sufficient to create a factual dispute over whether the District defendants were involved in recording the meeting and thus violated Penal Code section 632.

We conclude the Flatley exception does not apply to the alleged Penal Code violation and take District defendants' conduct outside the protections of section 425.16. First, District defendants have not conceded they violated Penal Code section 632. Second, the evidence before this court does not conclusively demonstrate District defendants were involved in the recording of the coaches' meeting and, as a result of that involvement, violated Penal Code section 632.

2. Disputes relating to 18 United States Code section 2511

Federal statute makes it a crime to intercept oral communications intentionally or to disclose the contents of an intercepted communication intentionally. Except as otherwise provided by the statute, a crime is committed by any person who:

"(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; [¶] ... [¶]

"(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
"(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection." (18 U.S.C. § 2511(1).)

The statute also describes situations where the interception or disclosure of intercepted communications is not a crime. For instance, it is not unlawful for a person not acting under color of law to intercept an oral communication "where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." (18 U.S.C. § 2511(2)(d).) The exception at the end of this statutory provision was interpreted by the court in Thomas v. Pearl (7th Cir. 1993) 998 F.2d 447, to mean that a person whose statements were intercepted could not prove a violation of the federal statute without showing that the interceptor "either intended to break the law or commit a tort against him." (Id. at p. 451 [basketball player suing university coach who recruited player out of high school failed to show coach recorded their telephone conversations with intent to break law or commit tort].) It follows that a person disclosing a recording of a meeting that he or she did not attend would violate the federal statute only if that person knew or had reason to know the recording was made by another with the intent to violate the law or commit a tort.

Here, District defendants concede they sent a transcript of the tape recording to CIF, the Diocese, and the administration of Garces based on a concern about potential recruiting violations. They do not concede, however, that their distribution of the transcript was illegal. Among other things, District defendants argue that plaintiffs produced no evidence that Greene knew the recording to be illegally obtained.

Based on our review of the record, we conclude the evidence does not conclusively demonstrate that District defendants knew or should have known that Weber recorded the meeting with the intent to violate the law or commit a tort. As a result, the evidence does not establish District defendants violated 18 United States Code section 2511 when they distributed transcripts of that meeting. (Cf. Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296-1297 [evidence conclusively established animal rights group conspired to commit criminal acts of vandalism and harassment]; Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799 [attorney demand letter in an employment dispute constituted criminal extortion as a matter of law].) Consequently, the narrow exception for criminal activity defined by our Supreme Court in Flatley does not take District defendants' conduct outside the protections of section 425.16.

E. Plaintiffs' showing of sufficient merit to allow litigation to proceed

If the moving party has carried its initial burden under section 425.16, the complaining party then has the burden of demonstrating a probability of prevailing on the claim. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) The complaining party carries this burden by demonstrating 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. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) In effect, the complaining party can avoid the summary-judgment-like aspect of the anti-SLAPP statute by showing its claim has the requisite minimal merit and, thus, should be allowed to proceed. (Vasquez, supra, 1 Cal.5th at p. 420.)

1. Merits of the claim of a conspiracy to intercept or record

District defendants acknowledge the complaint alleged that all defendants covertly taped the meeting but contend there was no evidentiary support for the allegation that District defendants had anything to do with the recording of the meeting, whether as part of a conspiracy or because Weber acted as their agent. District defendants contend (1) the only evidence submitted on the issue was contained in paragraph No. 3 of Maples's declaration; (2) objections to that paragraph were sustained; and (3) plaintiffs have not challenged the evidentiary rulings on appeal.

Appellate courts review rulings on evidentiary objections made in connection with a motion to strike under section 425.16 for an abuse of discretion. (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348, fn. 3 (Hall).)

Plaintiffs do not directly contest District defendants' arguments about the lack of evidence to support the existence of a conspiracy to record or intercept or a principal-agent relationship with Weber. Instead, plaintiffs rely on their contention that the alleged violations of federal and state law constitute criminal activity that does not constitute protected activity within the ambit of section 425.16. Under plaintiffs' view of the law, Gerbosi, Malin, and Lefebvre lead to the conclusion that District defendants' conduct was not protected activity for purposes of section 425.16 and the second prong of the anti-SLAPP analysis should not be reached. We have rejected plaintiffs' view of those cases and concluded the narrow Flatley exception for illegal activity does not apply in this case. Consequently, we reach the second step of the two-step anti-SLAPP inquiry and consider whether plaintiffs have shown a reasonable probability of prevailing on their claim.

As to whether plaintiffs have presented the minimal level of evidence required to carry their burden of demonstrating a probability of prevailing on their claims that District defendants were involved in the interception or recording of their oral statements at the coaches' meeting, we conclude they have not carried that burden with admissible evidence. Maples's declaration stated that the "most reasonable explanation under the totality of the circumstances," which included how District defendants used the transcript of the recording, is that a prior agreement existed among the wrongdoers to harm Maples and his fellow coaches. This assertion about a prior agreement among the wrongdoer was the subject of an evidentiary objection by District defendants that was sustained by the trial court. Consequently, to the extent that the causes of action are based on the allegation that District defendants were involved in the interception or recording of the meeting, those causes of action cannot survive the motion to strike.

2. Merits of the criminal disclosure claim

As previously mentioned, District defendants admit they sent a transcript of the tape recording to CIF, the Diocese, and the administration of Garces. Consequently, we consider whether plaintiffs have carried their burden of demonstrating a probability of prevailing on their theory that District defendants' disclosure of the transcript of their confidential communications was a crime for which plaintiffs have a private right of action.

First, we note that distribution or disclosure is not an activity covered by Penal Code section 632, which makes it illegal to record confidential communications secretly. Consequently, liability under this theory cannot be based on Penal Code sections 632 and 637.2. (See generally, CACI No. 1809 [recording of confidential information].)

Penal Code section 637.2 states that any person injured by eavesdropping or the recording of confidential communications may bring a civil action against the perpetrator for the greater of $5,000 per violation or three times the actual damages sustained.

Second, the federal criminal statute prohibits intentional disclosures of the contents of any oral communication by a person "knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection." (18 U.S.C. § 2511(1)(c).) A private right of action for violations of this provision is created by 18 United States Code section 2520. Therefore, to recover on a civil claim for violation of the federal statute, plaintiffs must prove, among other things, that District defendants knew or should have known that the recording of the meeting was obtained in violation of federal law. In the context of this motion to strike, plaintiffs must carry the burden of presenting evidence that, if believed, is sufficient to establish this element of their claim.

The only evidence plaintiffs presented in support of their opposition to the motion to strike was the declaration of Maples, and that declaration does not present any evidence that District defendants knew or had reason to know that Weber recorded the meeting of the coaches in violation of the federal statute. Consequently, we conclude that plaintiffs have not carried their burden of demonstrating a probability of prevailing on the claim that District defendants' disclosure of the contents of the recording to CIF, the Diocese, and the administration of Garces was a crime under federal law. (Cf. Thomas v. Pearl, supra, 998 F.2d at pp. 449, 451 [plaintiff failed to show that university coach who recorded their telephone conversations did so with intent to break law or commit tort; summary judgment for coach affirmed].)

3. Merits of defamation and false light causes of action

Plaintiffs' third and fourth causes of action—defamation and false light, respectively—alleged that defendants falsely stated or insinuated that plaintiffs had engaged in misconduct, including improper recruiting. In opposing the motion to strike, plaintiffs explained their claim about false statements by contending that District defendants knowingly distributed a falsified transcript or excerpts of the tape recording. Plaintiffs asserted the transcript or excerpts replaced the names of Garces students who had actually been discussed with the names of students at other schools in the Kern High School District.

Plaintiffs supported their allegation with the declaration of Maples, which stated that the transcript of the recording contained false transcriptions in that the "names of Garces students were replaced with names of students at Kern High School District schools, implying improper recruiting activities were being discussed." District defendants objected to Maples's statements, asserting his statements lacked foundation and were inadmissible oral testimony regarding the contents of a writing. The trial court sustained those objections.

A copy of the transcript or the recording itself was not included in the record.

Based on the trial court's ruling on the evidentiary objections to Maples's declaration, we conclude plaintiffs have failed to carry their burden of demonstrating a probability of prevailing on the claim that District defendants falsified the transcript of the recording and, thus, defamed plaintiffs or presented plaintiffs in a false light. (See Hall, supra, 153 Cal.App.4th at pp. 1347-1348 [appellate courts consider whether plaintiff presented admissible evidence demonstrating probability of prevailing on claim].)

4. Merits of the claim for intrusion into private affairs

Plaintiffs' sixth cause of action, labeled "intrusion into private affairs," alleged defendants gained private access to confidential information to which plaintiffs had a reasonable expectation of privacy. As formulated by our Supreme Court, the tort of intrusion into private matters has two elements: (1) the defendant's intentional intrusion into a private place, conversation, or matter (2) in a manner highly offensive to a reasonable person. (Taus v. Loftus (2007) 40 Cal.4th 683, 724-725; Rest.2d Torts, § 652B, pp. 378-380 [invasion of privacy—intrusion on seclusion]; see CACI No. 1800 [intrusion into private affairs].)

Here, there is no evidence that District defendants intruded into the meeting of the coaches. Weber attended and recorded the meeting and, as described earlier, there is no admissible evidence that District defendants had formed a conspiracy with Weber or that Weber acted as their agent when he recorded the meeting. Furthermore, plaintiffs have cited no authority that District defendants listening to the tape recording sent to them constituted the type of intentional intrusion encompassed by California's formulation of the tort. For example, listening to a recording after it has been made is not a physical or other type of intrusion similar to the eight illustrations provided in the comments to section 652B of the Restatement Second of Torts. (Rest.2d Torts, § 652B, com. b, illus. 1-5 & com. c., illus. 6-7 & com. d, illus. 8, pp. 379-380; see Tureen v. Equifax, Inc. (8th Cir. 1978) 571 F.2d 411, 416-417 [independent consumer reporting firm did not intrude on plaintiff's privacy by collecting and retaining his past insurance history].) Accordingly, we conclude that plaintiffs have failed to carry their burden of demonstrating a probability of prevailing on their sixth cause of action for an intrusion into private affairs.

5. Merits of the claims for public disclosure of private facts

Plaintiffs' seventh cause of action, labeled "public disclosure of private facts," alleged all of the defendants disseminated or misused sensitive and confidential information obtained under circumstances in which plaintiffs had a reasonable expectation of privacy. The four essential elements of the tort of public disclosure of private facts are (1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to a reasonable person, and (4) which is not of legitimate public concern. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214; see Rest.2d Torts, § 652D, p. 383 [invasion of privacy—publicity given to private life]; CACI No. 1801 [public disclosure of private facts].)

Plaintiffs' appellate briefing does not identify these elements and systematically set forth the evidence they contend supports each element. In contrast, District defendants' appellate brief contains a heading stating that there is no admissible evidence to support a claim for public disclosure of private facts. As to the first element, District defendants contend that "public disclosure" requires disclosure to the public in general or to a large group and that disclosure to a few people in limited circumstances does not violate the right to privacy. District defendants argue that providing a transcript to the administration of Garces, the Diocese, and CIF is simply not the public at large. We agree.

We conclude that sending the transcript to three entities, CIF (the regulatory body), the administration of Garces (the employer of the coaches), and the Diocese (the entity that operates Garces) does not constitute "public disclosure" for purposes of the tort of public disclosure of private facts. Rather, it amounts to a disclosure limited to the entities with a direct interest in the potential recruiting violations. (Cf. Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 828-829 [university's disclosure of plaintiff's transcript to scholarship and loan commission was not to the public in general or large number of persons].) Consequently, the disclosure is not comparable to a case where the document in question was published in a newspaper or posted on a website available to anyone with internet access. (See Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1128-1129.)

We recognize that plaintiffs have alleged that another defendant, James Crichlow, made public comments about the investigation to the media and insinuated that plaintiffs engaged in misconduct. These statements by another defendant do not constitute a public disclosure attributable to the District defendants because plaintiffs have presented no evidence to support the claim that Crichlow was a coconspirator or agent of District defendants.

Consequently, we conclude plaintiffs have not demonstrated a reasonable probability of prevailing on their tort claim for public disclosure of private facts against District defendants. Accordingly, the trial court properly struck that cause of action as to District defendants.

DISPOSITION

The November 21, 2014 order granting District defendants' motion to strike is affirmed. District defendants shall recover their costs on appeal.

/s/_________

SMITH, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
PEÑA, J.


Summaries of

Maples v. Kern High Sch. Dist.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 1, 2017
No. F070867 (Cal. Ct. App. Feb. 1, 2017)
Case details for

Maples v. Kern High Sch. Dist.

Case Details

Full title:JIM MAPLES et al., Plaintiffs and Appellants, v. KERN HIGH SCHOOL DISTRICT…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 1, 2017

Citations

No. F070867 (Cal. Ct. App. Feb. 1, 2017)