Judge: Mark A. Young, Case: 19SMCV01975, Date: 2023-09-21 Tentative Ruling
Case Number: 19SMCV01975 Hearing Date: September 21, 2023 Dept: M
CASE NAME: Siegemund v.
Le Lycee Francais de Los Angeles
CASE NO.: 19SMCV01975
MOTION: Special
Motion to Stike
HEARING DATE: 9/14/2023
Legal
Standard
Code
of Civil Procedure section 425.16 permits the Court to strike causes of action
arising from an act in furtherance of the defendant's right of free speech or
petition, unless the plaintiff establishes that there is a probability that the
plaintiff will prevail on the claim. “The
anti-SLAPP procedures are designed to shield a defendant’s constitutionally
protected conduct from the undue
burden of frivolous litigation.” (Baral
v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does
not insulate defendants from any
liability for claims arising from the protected rights of petition or speech.
It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected
activity.” (Id. at 384.)
“Resolution of an anti-SLAPP motion
involves two steps. First, the defendant must establish that the challenged
claim arises from activity protected by section 425.16. If the defendant makes
the required showing, the burden shifts to the plaintiff to demonstrate the
merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court
has “described this second step as a ‘summary-judgment-like procedure.’ The
court does not weigh evidence or resolve conflicting factual claims. Its
inquiry is limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to sustain a favorable
judgment. It accepts the plaintiff’s evidence as true, and evaluates the
defendant’s showing only to determine if it defeats the plaintiff’s claim as a
matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].)
EVIDENTIARY ISSUES
Siegemund’s objections are SUSTAINED as to nos. 1
(foundation), 2 (foundation/conclusions), 5 (foundation as to AFA &
Siegemund’s financial information only), 6 (foundation), 8 (conclusion as to
discussions of politics/religion at school only), 9 (foundation/conclusion), 11
(foundation as to Siegemund’s statements only), 20 (foundation/conclusions), 22
(foundation/conclusions/improper opinion).
Analysis
First
Prong
Plaintiff/Cross-Defendant
Siegemund moves to strike the Cross-Complaint’s trade libel claim and a
portion of the breach of contract claim.
Code of Civil Procedure section
425.16(e) defines protected acts as the following: 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. Relevant to
this matter is the third type of protected acts – statements made in an open or
public forum in connection with an issue of public interest.
“[A] claim may be struck only if the
speech or petitioning activity itself is the wrong complained of, and not just
evidence of liability or a step leading to some different act for which
liability is asserted.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1060.) Allegations that are merely
incidental or collateral to a plaintiffs’ claim are not subject to a motion to
strike under section 425.16. (Baral, supra, 1 Cal.5th at 394.)
“Allegations of protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the anti-SLAPP
statute.” (Ibid.) “Where a plaintiff’s claim attacks only the
defendant’s decision to undertake a particular act, and if that decision is not
itself protected activity, that claim falls outside the ambit of the anti-SLAPP
statute.” (Mission Beverage Co. v. Pabst Brewing Co. LLC (2017)
15 Cal.App.5th at 701.)
The term public forum is construed broadly
to include settings beyond those protected by the First Amendment. (Seeling
v. Infinity Boradcasting Corp. (2002) 97 Cal.App.4th 798, 807.) Newspapers
and magazines are public fora within the meaning of anti-SLAPP. (Nygard,
Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1038; see also Sonoma
Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 24, 33-34
[newspaper and website are public forums because public can access them and it
is irrelevant that public cannot participate in forums].) For instance, a website
can be a public forum if statements on the website are “accessible to anyone
who chooses to visit the site.” (Wong v. Tai Jing (2010) 189
Cal.App.4th 1354, 1366-1367.)
“Section 425.16 does
not define ‘public interest,’ but its preamble states that its provisions
‘shall be construed broadly’ to safeguard ‘the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of
grievances.’” (Nygard, supra, 159 Cal.App.4th at 1039.) “‘[A]n issue of
public interest’ ... is any issue in which the public is interested. In other
words, the issue need not be ‘significant’ to be protected by the anti-SLAPP
statute—it is enough that it is one in which the public takes an interest.” (Id.
at 1042; see, e.g., Wong, supra, 189 Cal.App.4th at 1361-1367 [dentist
patient left a Yelp review stating a dentist filled her son’s cavity with
metallic filing which contains small traces of mercury, which was found to be
an issue of public interest because metallic filings contain mercury
which are a public controversy as evidenced by the articles, data, and other
documentary evidence submitted by defendant].)
“‘[P]ublic interest’ within the
meaning of the anti-SLAPP statute has been broadly defined to include, in
addition to government matters, ‘ “private conduct that impacts a broad segment
of society and/or that affects a community in a manner similar to that of a
governmental entity.” ’ (Ruiz v. Harbor View Community Assn. (2005) 134
Cal.App.4th 1456 Thus, “in cases where the issue is not of interest to the
public at large, but rather to a limited, but definable portion of the public
(a private group, organization, or community), the constitutionally protected
activity must, at a minimum, occur in the context of an ongoing controversy,
dispute or discussion, such that it warrants protection by a statute that
embodies the public policy of encouraging participation in matters of public
significance.” (Du Charme v. International Brotherhood of Electrical Workers
(2003) 110 Cal.App.4th 107, 119.)
Siegemund argues that the entirety
of the School’s trade libel cause of action and specific portions of the breach
contract cause of action that relate to Siegemund’s alleged failure to “uphold
and support the School’s spirit, good reputation, and goals of the
administrations, students, former students, and parents” arise out of protected
speech. The Cross-Complaint alleges that
Siegemund breached her contract, in part, by making the following statements:
Cross Defendant Siegemund made
disparaging, libelous, and slanderous statements about the School by lying
online, on the world wide web, and on its various applications, social media,
blogs, TV shows, and newspaper articles that the nonrenewal of her one year-expired
contract was a "firing". Siegemund lied that she was
"fired" and "terminated." In order to incite violence and
unlawful behavior against the School amongst the followers of her hate group,
white supremacists, and other radical groups and individuals. She falsely
claimed that she was the best teacher but was "fired," for
"teaching while loving America", "teaching while
conservative," "defending Western values," and for her
"political views," "political activities," "political
affiliations" and for "being a conservative."
[…]
Siegemund intentionally focused the
attention of her mislead, but gun-toting followers, to hate the school as she
claimed it is and it was the epitome and embodiment of all the forces which
aimed to destroy American democracy. Siegemund was successful in her clever
lies and unleashed a wave of hatred by her followers, including hate groups and
radicals who expressed their hate in emails directed to the School's
administration, in articles, in internet blogs, and on social media platforms.
The members of the administration of the school were frightened and feared for
their own safety and the students' safety. They were scared because Siegemund's
followers/haters compared the school to the German Nazi party in World War II,
and some to Hitler. The School has gay and lesbian students and teachers,
Muslim students and teachers, African American students and teachers, and many
students and teachers from other countries. In the age of school shootings,
where children and teachers are killed for no particular reason, the teachers'
and the students' fears were reasonable as Siegemund focused the attention of
radicals and followers of her hate group (the Southem Poverty Law Center, an
NGO, designated AFA as a hate group) at the School specifically, with a French
name and with students from 50 different countries. Siegemund knew this well as
she attended the School as a student and taught at the school for four years
until she was radicalized and became the head of the AFA hate group.
(CC at 4.)
Cross-Complainants
assert that making these statements was a breach of her employment contract.
Specifically, they cite the following terms:
Siegemund violated in bad faith
Paragraph D of her Employment Contract (See Exh. A, page 4, paragraph D), with
the above alleged intentionally wrongful acts. Paragraph D directs employees
"to uphold and support the School's spirit, good reputation, and goals of
the administrations, students, former students, and parents".
…complaints
and malicious gossip to or about parents, students, or other teachers or staff
indicate bad faith and the wrong attitude for a Le Lycée Employee and will be
considered as a breach of this Contract and reason(s) for dismissal. Employees
are forbidden from complaining to parents or students or anyone about the
School or their colleagues and from making disparaging or negative comments about
the School, its Administration, its teachers, or other employees, or the
students or their parents. The Administration should be informed in writing of
the problem or concern and given a chance to investigate and/ or correct the
problem and/ or concern, including, but not limited to events involving their
p1-ivate tuto1-ing. Employee is NOT allowed to disparage any Teacher or any
Colleague or comment on Student or classroom level. Loyalty, discretion, and
good faith is a courtesy afforded to all Le Lycée Teachers and is the basis for
good faith efforts of all the School's Employees."
(CC at 4.)
The Cross-Complaint also alleges
that Siegemund breached her contract by the following statements:
She ridiculed the School for
inviting the gay man's choir to perform at the School and said that it made her
"ill". She also posted on social media negative comments about how
gay men dressed and that in movies, gay men were given high-profile roles to
play. Siegemund and her invited speakers at AFA functions made speeches about
the evils of Islam and that Islam and Muslims were a threat to western
civilization. She also published statements about the superiority and almost
exclusive benefits of western values where by implication she demeaned the
students' cultural backgrounds who attended the school and who hailed from
various countries from Africa, Asia, the Middle, and the Far East. One of
Siegemund's colleagues at the school complained in writing to the
administration that Siegemund was advocating white supremacist ideology, which
was contrary to the School's goals, missions, business objectives, and
aspirations. In her communications, Siegemund specified the name of the French
school she worked at and that the School "fired" her just for loving
America and being conservative.
(CC at 5.)
The Cross-Complaint contends that
this conduct breached paragraph F, subsection 2 and 3 of her contract (See Exh.
A, Page 5), which reads: "2. If Employee neglects his /her duties or
conduct himself/herself in a manner unbecoming to a school employee or act(s) detrimental
to the interest of the School. [¶] 3. Upon any disloyalty to the School or its
Administration as desribed in Paragraph D hereinabove." (CC at 5.)
As alleged, the above statements
were written or oral statements made in a place open to the public or on a
public forum. The Cross-Complaint specifically alleges that “Siegemund made
disparaging, libelous, and slanderous statements about the School by lying
online, on the world wide web, and on its various applications, social media,
blogs, TV shows, and newspaper articles[.]” Authority plainly holds that such instruments
are public fora. Therefore, on the face of the allegations, the statements were
made in public fora.
Further, the statements pertain to
an issue of public interest. Generally, the statements pertain to Siegemund’s
public accusations that the School terminated her employment because of her
political views/activity, and Siegemund’s perception of a liberal political
bias at the School. (CC at 4, 7.) The public at large has an interest in
political discrimination at school and the workplace. The community surrounding
the School, including faculty, staff, students, alumni, parents, and donors,
have a specific interest in the School’s policies and its treatment of
employees. As Siegemund has demonstrated that the above statements were public
fora and in connection with an issue of public interest, Siegemund meets her
burden as to the above potions of the Cross-Complaint.
The Cross-Complaint also alleges
breaches of contract that do not arise from protected activity. This includes
allegations that Siegemund missed meetings, did not appear to teach class on
several occasions without sufficient forewarning, feigned ailments, and worked
for AFA instead of attending to her teaching duties. Siegemund apparently does
not target these allegations with this motion.
Therefore, as to the breach of contract cause of action, Siegemund has
satisfied the first prong of the anti-SLAPP statute.
Trade Libel
In
opposition, Cross-Complainants argue that the trade libel claim was dismissed,
mooting the instant motion. The Court concurs with Siegemund that dismissal
does not moot the motion as to the trade libel cause of action. (See Law Offices of Andrew L. Ellis v. Yang (2009)
178 Cal.App.4th 869, 879 [when a case is dismissed while a special motion to
strike is pending, the trial court has limited jurisdiction to rule on the
merits of the motion to decide if attorney’s fees and costs should be awarded
to the defendants]; Kyle v. Carmon (1999) 71 Cal.App.4th 901,
918–19 [trial court did not err in awarding defendant attorney fees and costs
despite plaintiff's voluntary dismissal having divested the court of
jurisdiction to rule on the motion; the court retains discretion to determine
whether the defendant is the prevailing party for purposes of an award of
attorney fees and costs].) Thus, the Court will rule on the merits of the
motion, and award fees and costs if appropriate.
Cross-Defendant
allegedly committed trade libel by the following statements:
Siegemund made untrue statements
and outright lies, at the above listed places, locations, internet sites, and
on social media, that she was "fired" from the School for
"loving America", "fired" as a teacher for "teaching
while conservative", and for "defending western civilization",
implying that Siegemund had to "defend western values from attacks, from
non-western civilizations, namely from African, Asian, Far and Near Eastern
civilizations. [¶] (a) her contract was not renewed "because of her
political beliefs."; [¶] (b) the
School had one perspective "that from the extreme left side of the
American political realm"; [¶] (c) the School "now lost the only
rational voice that could have though them about true diversity"; [¶] (d)
she has lost her job "after praising Western Civilization"; [¶] (e)
the reasons the School gave for her termination was that she had praised
Western Civilization at an AFA event; [¶] (t) she was fired just because she
believed in Western Civilization; [¶] (g) she was fired for defending Western
Civilization; [¶] (h) she lost her job over political beliefs; [¶] (i) she was
fired for making a speech, that she became "a victim, a casualty of this
Long March, of the Left's silencing tactics"; [¶] (g) the children at the
School are not allowed to be Western; [¶] (k) the School disavows Western
Civilization; [¶] (l) "make a statement praising Western Civilization and
you're out" of the School; [¶] (m) she was "removed" because she
did not "adhere to the Leftist agenda"; [¶] (n) "[i]t's that
weird kind of leftist that turned praise for Western Civilization into a
negative"; [¶] (o) the "leftism ... intolerance that is shocking. It
is astounding, the hate and the viciousness. I lost my job"; and [¶] (p)
"she was the only conservative teacher at the school while the rest were
very vocal leftists, some who encouraged their students towards political
activism on the school campus" These disparaging statements were in
connection with, related to, and affected the School's business and services.
(CC at 7.)
The
analysis tracks the breach of contract claim. The Cross-Complaint expressly
alleges that the statements were made in public fora, such as internet
sites and social media. Each statement refers to the same public issue:
political discrimination at school and the workplace. As noted above, the
community surrounding the School, including faculty, staff, students, alumni,
parents, and donors, have a specific interest in the School’s policies and its
treatment of employees.
Second
Prong
As the first
prong was met as to each cause of action, Cross-Complainants now have the
burden to show a prima facie case. As to
the breach of contract cause of action, the “standard
elements of a claim for breach of contract are: ‘(1) the contract, (2)
plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach,
and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New
York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)
Cross-Complainant presents the contract at
issue as the employment agreement cited extensively in the cross-complaint. (Kabbaz
Decl., Ex. 10.) As noted above, the School’s contract prohibits
disparagement of the School’s reputation during the employment term.
The contract provided that employees must: “uphold and
support the School’s spirit, good reputation, and goals;” not make any
“comments or complaints… directly to the administration;” refrain from
“malicious gossip to or about parents, students, or other teachers or staff;”
are “forbidden from complaining to parents or students… about the School;”
refrain from “making disparaging or negative comments about the School, its
Administration, its teachers, or other employees;” refrain from “[e]ngag[ing]
in any activity which could be deemed competitive with, or adverse to the
School’s interest, reputation and welfare or the interest of teachers,
students, parents, or staff;” and not “disparage any Teacher or any Colleague
or comment on Student or classroom level.” (Id.) The contract required that
“[t]he Administration [] be informed in writing of the problem or concern and
given chance to investigate and/or correct the problem and/or concern.” (Id.)
Cross-Complainant argues
that there is no dispute that the School paid the full contract
salary of $78,000.00 to Siegemund and the School owes no monetary sum under the
term employment contract. Cross-Complainant submits evidence that Siegemund
admits that she was fully paid under the 2018-2019 employment contract. (See
Szabo Decl., Ex. 1 [RFA 36].)
Cross-Complainant presents evidence
of Siegemund’s breach of the above terms. Siegemund’s contractual obligations
lasted until August 31, 2019 (Szabo Decl., Ex. 1 [RFA 33].) Kabbaz provides
that Siegemund made a false statement to the press that "According to
Karen, she was the only conservative teacher at the school while the rest were
very vocal leftists" in an article published on politichicks.com, authored
by Ann-Marie Murrell, published on May 9, 2019. (Kabbaz Decl., ¶ 13.) Siegemund
was still being paid to teach Math when she made that statement. (Id.) During
deposition, Siegemund admitted making adverse statements about Le Lycee after she
received notice of her non-renewal, but while still under contract. (Id., Ex.
3112:2-18; 113:15-23.)
Cross-Complainant demonstrates
consequential damages, as they needed to provide extra expenditures for armed
security due to the reputational damage and nature of Siegemund’s statements. (Kabbaz
Decl., ¶ 9, Ex. 9.) With
this evidence, Cross-Complainant demonstrates the minimal merits of the breach
of contract claim.
In
response, Siegemund argues that Cross-Complainants cannot succeed on the breach
of contract action as to her statements because (1) the School’s claim
for damages violates the Labor Code; (2) the School is limited to the exclusive
remedy provision in the Contract; and (3) the provision of the Contract at
issue is aspirational.
Indeed, it is “unlawful for any
employer to collect or receive from an employee any part of wages theretofore
paid by said employer to said employee.” (Lab. Code § 221.) However, even if this
section applies to this breach of contract claim, this would not defeat the
entirety of the damages claimed. The cross-complaint alleges damage beyond payment
of wages. Other damage may exist, such as reputational damage or the alleged increased
security.
Further, there is no indication in
the contract that Section F provides an “exclusive remedy” for breach of the
employment contract. The contract provides the School with an option to
terminate the contract upon breach: “The School shall have the right and option
to terminate this Contract under the following circumstances . . ..” The use of
the word “shall” refers to their “right and option,” and does not logically
create any exclusive remedy by itself. No other limiting language is brought to
the Court’s attention.
Siegemund cites out of state
authorities which purportedly hold that “aspirational language” cannot form the
basis for a breach of contract cause of action. (US Methanol, LLC v. CDI
Corp (4th Cir. July 14, 2022) 2022 WL 2752365, at *4 (“The provision
identified [by the defendant] and relied on is aspirational at best—merely a
goal...It simply does not...rise to the level of an enforceable, contractual
obligation.”].) California law does not apparently recognize an “aspirational
language” exception to breach of contract. Instead, it focuses on the certainty
and materiality of the terms of the contract. If the contract is uncertain,
indefinite, or immaterial, the terms are unenforceable. (See Moncada v.
West Coast Quartz Corp.
(2013) 221 Cal.App.4th 768, 777 [“‘Where a contract is so uncertain and
indefinite that the intention of the parties in material particulars cannot be
ascertained, the contract is void and unenforceable”].) Reviewing the above
terms, despite some of the “aspirational” phrasing, the terms forbidding
disparagement of the School are not so uncertain that they cannot be
enforced. Moreover, the contract itself describes the material terms.
Accordingly, the motion is DENIED as to
the identified portions of the first cause of action.
Trade Libel
Cross-Complainant does not argue
that they will prevail on the claim for trade libel. They do not present
evidence that they will prevail on the merits. In fact, they present evidence
that they dismissed the claim because they cannot show special damages. (Kabbaz
Decl., ¶¶23-24.) Therefore, Cross-Complainant fails to show minimal merits of
this claim.
As Cross-Complainants dismissed the
claim, the Court cannot order the claim stricken. However, the Court has
jurisdiction to impose attorneys’ fees. Siegemund requests leave to file a
motion for the fees and costs she incurred in making this motion under Code of
Civil Procedure section 425.16(c)(1). As the claim arose from protected
activity, and there is no dispute that the claim did not have minimal merit,
the Court must grant fees. Accordingly, leave is granted for Siegemund to claim
reasonable attorneys’ fees and costs for bringing this motion.