Judge Theresa M. Traber, Case Number: 24STCV06982, Date: 2024-09-06 Tentative Ruling

Judge: Theresa M. Traber, Case: 24STCV06982, Date: 2024-09-06 Tentative Ruling

Case Number: 24STCV06982 Hearing Date: September 6, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: September 6, 2024 TRIAL DATE: NOT SET

CASE: Lawson Bush V v. Board of Trustees of the California State University, et al.

CASE NO.: 24STCV06982

SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16

MOVING PARTY: Defendant Board of Trustees of California State University, joined by Defendant Melina Abdullah, in pro per

RESPONDING PARTY(S): Plaintiff Lawson Bush V.

CASE HISTORY:

· 03/20/24: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for employment discrimination, harassment, retaliation, and defamation. Plaintiff alleges that he was not selected for the position of Dean of the College of Ethnic Studies at California State University Los Angeles. Plaintiff attributes this denial to alleged statements by Defendant Melina Abdullah which he contends were defamatory.

Defendant Board of Trustees of California State University specially moves to strike the fourth cause of action for harassment, the fifth cause of action for intentional infliction of emotional distress, and the sixth cause of action for defamation pursuant to Code of Civil Procedure section 425.16. Defendant Melina Abdullah joins the motion.

TENTATIVE RULING:

Defendant Board of Trustees of the California State University’s Special Motion to Strike is GRANTED.

Defendant Abdullah’s Joinder to the Special Motion to Strike is GRANTED.

The Fourth, Fifth, and Sixth Causes of Action are hereby stricken in their entirety.

DISCUSSION:

Special Motion to Strike

Legal Standard

In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure” at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (Code Civ. Proc. § 425.16(b)(1).) Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc. § 425.16(b)(3).) The defendant has the burden on the first issue, and the plaintiff on the second. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919.) In making both determinations, the trial court is to consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc. § 425.16(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

Defendant’s Evidentiary Objections

Defendant objects to portions of Plaintiff’s evidence offered in support of his opposition to this motion. As a preliminary matter, Defendant objects to consideration of any evidence which is not directly cited by Plaintiff’s opposition brief. While the Court is not obliged, as Defendant puts it, “to scour the record to find evidence supporting that party’s position,” the Court is not persuaded that Plaintiff’s supporting Declaration and attached exhibits are so voluminous that the Court should refuse to examine them.

As to Defendant’s objections to specific portions of that record, the Court rules as follows:

Objection No. 1: SUSTAINED as lacking foundation or personal knowledge. (Evid. Code §§ 403, 702.)

Objection No. 2: SUSTAINED as an improper legal conclusion with respect to the word “defame,” and as lacking foundation generally. (Evid Code §§ 403, 702, 800, 801.)

Objection No. 3: SUSTAINED as lacking personal knowledge. (Evid. Code §§ 403, 702.) Plaintiff is not competent to testify as to another party’s intent.

Objection No. 4: SUSTAINED as an improper legal conclusion with respect to the word “defamatory,” (Evid. Code §§ 800, 801), and as hearsay not subject to any exception. (Evid. Code § 1200.) OVERRULED to the extent Plaintiff offers Dean Malveaux’s statement as evidence of knowledge of accusations against Plaintiff or his state of mind as a decision-maker.

Objection No. 5: SUSTAINED as lacking foundation with respect to the source of the email. (Evid. Code § 403, 702.)

Objection No. 6: SUSTAINED under the secondary evidence rule. (Evid. Code § 1253(a).) The document speaks for itself.

Objection No. 7: SUSTAINED as hearsay. (Evid. Code § 1200.)

Objection No. 8: OVERRULED. The screenshots themselves do not lack foundation. Moreover, a lack of authentication is not a valid objection in the context of a special motion to strike because a failure to authenticate may be remedied at trial. (Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal.5th 931, 948.)

Objection No. 9: SUSTAINED as lacking personal knowledge. (Evid. Code §§ 403, 702.) Plaintiff is not competent to testify as to another party’s mental state.

Objection No. 10: SUSTAINED as lacking foundation and personal knowledge or as hearsay if stated by Dean Malveaux as to the basis for the questions. (Evid. Code §§ 403, 702.) OVERRULED as to the question asked by Dean Malveaux, which is within Plaintiff’s knowledge and not hearsay.

Objection No. 11: SUSTAINED as lacking foundation and personal knowledge, as to whether Dr. Abdullah made the reported statements and whether those statements had influenced Malveaux’s perception of Plaintiff. (Evid. Code §§ 403, 702.)

Objection No. 12: SUSTAINED as lacking in personal knowledge of the substance of Dr. Abdullah’s previous evaluations of Plaintiff. (Evid. Code §§ 403, 702.)

Objection No. 13: SUSTAINED as lacking personal knowledge. (Evid. Code §§ 403, 702.) Plaintiff is not competent to testify as to another party’s mental state. Plaintiff’s characterization of the statements as “defamatory” is also an impermissible legal conclusion. (Evid. Code § 800, 801.)

Objection No. 14: SUSTAINED as improper lay witness opinion. (Evid. Code §§ 400, 403, 410, 02, 800, 803.)

Objection No. 15: SUSTAINED as lacking personal knowledge. (Evid. Code §§ 403, 702.) Plaintiff is not competent to testify as to another party’s mental state.

Objection No. 16: SUSTAINED as lacking foundation. (Evid. Code §§ 403, 702.)

Objection No. 17: SUSTAINED as an impermissible legal conclusion with respect to “defamatory,” (Evid. Code §§ 800, 801) and as lacking foundation and personal knowledge with respect to the attribution to Defendant Abdullah. (Evid. Code §§ 403, 702.) OVERRULED as to testimony of the impact of the statements. Plaintiff is competent to testify to the physical and emotional effect of the statements on him.

Objection Nos. 18-20: SUSTAINED as improper argument. (Evid. Code §§ 800, 801; In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30 fn.3.)

Objection Nos. 21-22: SUSTAINED as lacking foundation and personal knowledge with respect to the attribution to Defendant Abdullah. (Evid. Code §§ 403, 702.) OVERRULED as to relevance because Plaintiff’s exhibits are offered to contradict the alleged attacks on Plaintiff and challenge the truth of those statements.

Protected Activity

Defendant contends that the fourth cause of action for hostile work environment harassment, fifth cause of action for intentional infliction of emotional distress, and the sixth cause of action for defamation per se are all grounded in allegations of protected activity.

To satisfy the first prong of the two-prong test, the defendant’s acts underlying the cause of action must themselves have been in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.) The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16(e): (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc. § 425.16(e); City of Cotati, supra, 29 Cal.4th at 78; Equilon Enterprises, supra, 29 Cal.4th at 67.)

In determining whether a cause of action is based on protected activity, we “examine the¿principal thrust¿or¿gravamen¿of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies.” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP¿(2017) 18 Cal.App.5th 95, 110, citation omitted.) “We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing¿conduct¿... that provides the foundation for the claim.’” (Id. at 111, bold emphasis added, citation omitted.) In other words, section 425.16 does not apply if Defendant’s constitutionally protected activity is “merely incidental” or “collateral” to the unprotected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.”¿(Ibid.)

Plaintiff’s Complaint alleges that he was not selected as the next Dean of CSULA’s College of Ethnic Studies because of false accusations by Defendant Abdullah. (Complaint ¶ 53.) Plaintiff alleges that, at some point during the selection process for interim dean of the College of Ethnic Studies, Plaintiff received a screenshot of a text chain wherein Defendant Abdullah called Plaintiff an “oppressive misogynist.” (Complaint ¶ 44.) Allegedly, then-Dean Julianne Malveaux informed Plaintiff that Defendant Abdullah had “told the provost and other CSULA colleagues that [Plaintiff] practiced ‘Voodoo’ and ‘witchcraft’” (Complaint ¶ 51.) Plaintiff further alleges that Defendant Abdullah told CSULA colleagues that Plaintiff was a “polygamist.” (Complaint ¶ 82.) Plaintiff also alleges that Dr. Abdullah discussed Plaintiff’s formal claim for damages at a California Faculty Association board meeting in December 2023. (Complaint ¶ 59.) Finally, Plaintiff alleges that Dr. Abdullah sent an email on January 1, 2024 to the Pan-African Studies Department of the College of Ethnic Studies announcing Plaintiff’s intention to file this lawsuit, complaining about Plaintiff’s leadership of and commitment to the department, and accusing him of taking steps to humiliate her and limit her ability to perform community work. (Complaint ¶¶ 61-66.) Plaintiff alleges that Defendant Abdullah’s statements were harassment and defamation. (Complaint ¶¶ 121-152.)

1. Statements Regarding Candidacy for Dean

Defendant contends that the statements alleged against Dr. Abdullah during the selection process for interim Dean of the College of Ethnic Studies were statements made in connection with an official proceeding authorized by law. (See Code Civ. Proc. § 425.16(e)(2).) Statements are “in connection with” an issue under consideration in an official proceeding if they relate to the substantive issues in that proceeding. (Contemporary Servs. Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055.)

As a public entity, the California State University is governed by statute, and its procedures for faculty appointments are enacted pursuant to California statutes and regulations. (See Educ. Code § 89030; Cal. Code Regs tit. 5 § 42701.) Thus, Defendant argues, selection of an interim Dean of the College of Ethnic Studies is an official proceeding by a public entity, and statements in connection with the selection are statements in connection with an official proceeding. Because the alleged statements regarding Plaintiff’s suitability as Dean directly relate to the substance of the proceeding to select the Dean, Defendant contends that those statements are protected activity under section 425.16(e)(2).

In opposition, Plaintiff contends that the statements were not made in connection with an official proceeding because they were private statements not made in direct connection with the Dean selection process. Plaintiff contends that “the Anti-SLAPP statute is not intended to shield individuals who make defamatory statements in private settings,” citing Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 854, in support. However, nothing in that opinion stands for that proposition, and the Court is not persuaded by Plaintiff’s unsupported assertions. Further, there has been no showing that Defendant Abdullah’s statements should be considered purely personal rather than in connection with providing input into the consideration of Plaintiff to be a Department Head.

Based on this record, the Court finds that the alleged statements by Defendant Abdullah during the Dean selection process are protected activity pursuant to Code of Civil Procedure section 425.16(e)(2).

2. Statements Regarding Plaintiff’s Claims for Relief

Defendant also contends that the statements alleged against Defendant Abdullah in the December 2023 CFA meeting and the January 1, 2024 email are statements made in anticipation of litigation. Statements in connection with a judicial proceeding expressly constitute protected activity. (Code Civ. Proc. § 425.16(e)(2).) These protections extend to statements made in connection with or contemplation of civil litigation. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 472.) Defendant argues that because the alleged December 2023 and January 2024 statements relate directly to Plaintiff’s formal claim for damages and his planned lawsuit, Defendant Abdullah’s statements were made in connection with or in contemplation of civil litigation and constitute protected activity. As Plaintiff does not address these statements or allegations in his opposition, the Court concurs with Defendant that these allegations constitute protected activity.

As Defendant has demonstrated that the statements upon which the fourth, fifth, and sixth causes of action are founded constitute protected activity under Code of Civil Procedure section 425.16(e)(2), Defendant has satisfied its burden on the first prong of the Anti-SLAPP test. The burden now shifts to Plaintiff to demonstrate a probability of success on the merits as to each cause of action.

Probability of Success on the Merits

Plaintiff bears the burden on the second prong of an Anti-SLAPP analysis to demonstrate that there is a probability he will prevail on his claims. (Code Civ. Proc. § 425.16(b)(1); Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)

“[A] SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [112 Cal. Rptr. 2d 397].) “ ‘[A]lthough by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether “the [cross-complainant] has established that there is a probability that the [cross-complainant] will prevail on the claim” … , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that [cross-complainant] will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.’ [Citation.] ‘[T]he court's responsibility is to accept as true the evidence favorable to the [cross-complainant] … .’ [Citation.] ‘[T]he [cross-]defendant's evidence is considered with a view toward whether it defeats the [cross-complainant]'s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215 [105 Cal. Rptr. 3d 683].)

(Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 908-909.)

“We decide the second step of the anti-SLAPP analysis on consideration of ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the [cross-complainant] and assess the [cross-]defendant's evidence only to determine if it defeats the [cross-complainant]'s submission as a matter of law.’ (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700 [61 Cal. Rptr. 3d 29].) [¶] That is the setting in which we determine whether [cross-complainant] has met the required showing, a showing that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, [cross-complainant] needs to show only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5 [97 Cal. Rptr. 2d 179, 2 P.3d 27].) In the words of other courts, [cross-complainant] needs to show only a case of ‘minimal merit.’ . . .”

(Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 468-469).

Defendant, in its moving papers, contends that Plaintiff cannot prevail on the fourth, fifth, or sixth causes of action because the statements regarding the selection process for the Dean of the College of Ethnic Studies are protected by the official proceedings privilege, and because the statements regarding Plaintiff’s claims for damages are protected by the litigation privilege, both of which are codified in Civil Code section 47.

A privileged publication or broadcast is one made in any “(1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.” (Civil Code § 47(b).) “[C]ommunications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b).” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.) “The litigation privilege is absolute and broadly applied regardless of malice.” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1272.) “The critical question . . . is the aim of the communication, not the forum in which it takes place. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 284 [quoting Hagberg v. Cal. Fed. Bank (2004) 32 Cal.4th 350, 368.) Statements which are directed toward the achievement of the object of the formal proceeding are privileged. (Brody v. Montalbano (1978) 87 Cal.App.3d 725, 734.)

Defendant argues that Defendant Abdullah’s statements during the Dean selection process are absolutely privileged as statements in connection with an official proceeding because they are directed toward the achievement of the object of the proceeding, namely, the selection of the Dean. (See Complaint ¶ 56.) In opposition, Plaintiff argues that the statements are not privileged because they were neither necessary nor reasonably in furtherance of any objective of the proceeding, because Defendant Abdullah’s statements consisted of accusations of “witchcraft,” “voodoo,” and labeling Plaintiff as “oppressive” and an “abuser.” Plaintiff fails to support his assertion that Defendant Abdullah made any of these statements with admissible evidence, with the exception of the label “oppressive,” captured in a text message chain that appears to show Defendant Abdullah labeling Plaintiff “a horrible, oppressive, vindictive misogynist.” (See Plaintiff’s Exh. B. ISO Opp.) Even assuming this statement is a factual assertion, and not a non-actionable expression of opinion, it would not be a statement made for an improper purpose unrelated to the object of the Dean selection process. Rather, the statement, on its face, is an explanation of why Defendant Abdullah considered Plaintiff unsuitable for interim Dean of the College of Ethnic Studies. Opinion or not, Defendant Abdullah’s statement goes directly to the purpose of the Dean selection process. Plaintiff’s assertion that this statement was made with malice or in bad faith is not evidence and is not sufficient to demonstrate that the official proceedings privilege is not applicable. As Plaintiff bears the burden to demonstrate a likelihood of success on the merits, the Court finds that he has failed to carry this burden with respect to the statements regarding the Dean selection process.

As for the statements following the presentation of Plaintiff’s claim for damages, Plaintiff does not address these allegations in his opposition to the motion. The Court therefore finds that Plaintiff has not carried his burden with respect to the December 2023 and January 2024 statements.

Conclusion

Defendant has demonstrated that the fourth, fifth, and sixth causes of action rest entirely on statements which are protected by Code of Civil Procedure section 425.16(e)(2). Plaintiff has failed to demonstrate a likelihood of success on the merits of these causes of action because the targeted statements are privileged and thus resistant to any liability under Civil Code 47. Accordingly, Defendant Board of Trustees of the California State University’s Special Motion to Strike is GRANTED.

Joinder to Motion

Defendant Melina Abdullah, in propria persona, seeks to join the Board of Trustees’ Special Motion to Strike. Accordingly, for the reasons stated above, Defendant Abdullah’s Joinder to the Special Motion to Strike is GRANTED.

CONCLUSION:

For the reasons explained above, Defendant Board of Trustees of the California State University’s Special Motion to Strike is GRANTED.

Defendant Abdullah’s Joinder to the Special Motion to Strike is GRANTED.

The Fourth, Fifth, and Sixth Causes of Action are hereby stricken in their entirety.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: September 6, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.