Jacobsen v. Palamdale School Dist



Filed 2/26/13 Jacobsen v. Palamdale School Dist. CA2/4

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115



>

>

>

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FOUR




>

LYNETTE JACOBSON, Plaintiff and Respondent, v. PALMDALE SCHOOL DISTRICT et al., Defendants and Appellants.

B239582 (href="http://www.sandiegohealthdirectory.com/">Los Angeles County Super. Ct. No. MC022822)

APPEAL from an order of the href="http://www.fearnotlaw.com/">Superior Court of Los Angeles County,
Randolph A. Rogers, Judge. Reversed and
remanded with directions.

Carpenter, Rothans & Dumont,
Justin Reade Sarno and Louis R. Dumont for Defendants and Appellants.

Law Office of Brian E. Reed and Brian
E. Reed for Plaintiff and Respondent.



>INTRODUCTION

Lynette Jacobson (Jacobson) is a third
grade teacher at Ocotillo Elementary School in the Palmdale School District (District). Roger Gallizzi (Gallizzi) is the
Superintendent of the District. At a
public meeting of District’s Board of Trustees (Board), Jacobson spoke (as did
three other individuals) against a proposed change to District’s field trip
policy.

Three months later at the beginning of
the school year, Gallizzi delivered a “Welcome Back” message to District’s
teachers, staff, students and parents in which he expounded upon the theme that
an educator’s primary responsibility is to create a href="http://www.fearnotlaw.com/">learning environment for the
students. In that context, Gallizzi
referred to four incidents in which he believed teachers had acted
unprofessionally. He gave, as one
example, Jacobson’s remarks from Board’s public meeting, comparing her attitude
to that held by Scar, a character in “The Lion King.”

Jacobson sued Gallizzi and District
(collectively defendants), alleging that Gallizzi’s remarks were, among other
things, defamatory. Defendants moved to
strike Jacobson’s complaint pursuant to section 425.16.href="#_ftn1" name="_ftnref1" title="">>[1] Their anti-SLAPP
motionhref="#_ftn2" name="_ftnref2" title="">[2]
urged that the gravamen of Jacobson’s complaint arose out of Gallizzi’s
constitutionally protected communications on issues of href="http://www.fearnotlaw.com/">public interest and that Jacobson could
not demonstrate a probability of prevailing on her action. The trial court denied the motion, finding
that defendants had failed to demonstrate that Gallizzi’s “Welcome Back”
message was made in furtherance of his constitutional right to free speech.

This defense href="http://www.mcmillanlaw.us/">appeal follows. First, we find that Gallizzi’s message
addressed issues of public interest: the
goal of public education, the role teachers play in reaching that goal, and
District’s new field trip policy.
Second, we find that Jacobson failed to demonstrate a probability of
prevailing on her claims because Gallizzi’s message was subject to the href="http://www.fearnotlaw.com/">absolute privilege accorded statements
made by a government official in proper discharge of his official duties. (Civ. Code, § 47, subd. (a) (hereafter
section 47).) We therefore reverse the
trial court’s order and direct it to grant the special motion to strike, to
dismiss the complaint with prejudice, and to award attorney fees to the
defense.



FACTUAL AND PROCEDURAL
BACKGROUND

1. Facts
Underlying Jacobson’s Lawsuithref="#_ftn3"
name="_ftnref3" title="">[3]>

As Superintendent, Gallizzi is
responsible for District’s overall href="http://www.sandiegohealthdirectory.com/">operations. This includes overseeing the day-to-day
management of District and “ensuring that all operations of the district are
designed to provide rigorous academic challenges and rigorous expectations of
student achievement, facilitating the success of each student.” In addition, he “maintain[s] and lead[s] an
appropriate community and media relations program” and, “as part of [his]
official duties,” he “respond[s] to comments or criticisms from parents,
teachers, administrators, or other community members.”

According to Gallizzi, the subject of
school field trips had “been a topic of concern and conversation in the
community for several years.” The issues
include the cost and funding of the trips, the educational value of the trips,
and “the equity or inequity of the number of field trips that certain schools
were taking in the district compared to others.” In regard to the latter concern, Gallizzi had
“sought feedback from the various school sites and PTA groups, as well as
members of the community.” Gallizzi’s
Advisory Committee (the Committee) had discussed the issue several times. The Committee, comprised of members of the
Parent Teachers Association and “a parent representative from the school
community,” “provides input to [Gallizzi’s] office and the Board of Trustees,
which assists [their] efforts in shaping policy for the school district.” By June 2010, the Committee recommended to
the Board “to curtail the number of field trips since an equitable solution
could not be reached.”

On June 15, 2010, the Board conducted a public
meeting that Gallizzi attended. Towards
the end of the meeting, several individuals asked to address the Board about
“non-agenda items.” One such item was
the Committee’s proposed change to the field trip policy. One parent, one student, and two teachers
(one of whom was Jacobson) spoke against the proposal.

Jacobson identified herself as “a
community member, tax payer, parent, child advocate, and lastly a teacher [at Ocotillo Elementary School] in the Palmdale School District.”
She stated that she was concerned about District’s “recently announced
policy” “to cancel almost all field trips for the coming school years,
regardless of funding source.” According
to Jacobson, two rationales for this change had been advanced: inadequate funding at some schools and
“fairness.” After explaining how she
believed adequate funding could be assured, Jacobson stated:

“More
pressing, the issue of fairness has risen as the second obstacle to field trips
in [our District]. Let’s just state up front, life isn’t fair. It wasn’t fair that for several years [our]
District has had some failing schools.
It isn’t fair that schools may now apply for million dollar grants that,
if granted, will bring tremendous resources to only those schools. Grants by their very nature are not
fair. Two of my students went to the
District Spelling Bee. One received the
word judiciary, while the other had to spell glimpse. Not so fair?



“The
bottom line is that our country has been built on hard work and
determination. Americans have always
worked hard for what they achieve, and a sense of fulfillment is derived from
reaching a goal. Isn’t that one of the basic
values we try to instill in our students?
Hard work will get you ahead, as opposed to waiting around for someone
to hand you something.



“Teachers,
parents, and students work hard to raise money for such field trips at Ocotillo
[Elementary School]. Yes, we do have
some PTA fund raisers. We make requests
for support from local businesses. Each
year Supervisor Antonovich donates money to our school. But . . . we have to put the work into
asking. We have teachers who have
collected plastic bags, and we recycle at Ocotillo.



“I
would be more than happy to share any of these ideas with colleagues.” (Italics added.)





Jacobson ended by explaining the
benefits of field trips.href="#_ftn4"
name="_ftnref4" title="">[4]

After the four speakers had concluded
their remarks, Board’s President (Mark Gross) “directed” “Gallizzi and staff to
give due consideration to the comments.”


Gallizzi convened a meeting of the
Committee. According to Gallizzi, “after
due consideration and diligence was given to the matter, it was determined that
the best course of action for the school district was to pare back the number
of field trips in order to ensure greater equality for all of our students.”

At the beginning of the 2010-2011
school year, Gallizzi authored a “Welcome Back” message. The message was a mission statement that,
among other things, “communicated [the] decision” to change the field trip
policy. The message was distributed on a
DVD that all teachers were required to watch.
950 teachers heard the DVD. In
addition, Gallizzi’s message was “published and circulated” “to the entire
group of employees of the Palmdale School District as well as many parents and
students.”

Gallizzi’s annual message addressed
District’s responsibility to create a learning environment for students. His theme was “Learning for all, every child,
every day.” (Capitalization
omitted.) He explained: “When it comes to student learning, we can’t
sit back and do nothing. That is the
moral imperative, that is our moral responsibility.” After elaborating on his theme, Gallizzi
stated that he felt “compelled to share some very unprofessional remarks and
actions [he] witnessed [from teachers] in the past year” that he believed were
contrary to or undermined District’s duty to create a learning environment for
all students. First, Gallizzi read a
message that he had received from the leadership team at one school that
stated: “We do not believe it is our job
to create student learning.” Next,
Gallizzi said that he had “heard a group of teachers in a meeting blame only students
for low test scores.” After that, he
explained that he had “heard a teacher, in a staff meeting say that expecting
learning for all at high levels is like trying to teach Mandarin to a cafeteria
bench.” Gallizzi stated: “I know that this is not how most of
us think. But what is troubling is that
to both of these outbursts no one responded.
No one said anything. I am
confident that the room full of professionals was shocked into silence at the
statements and this was not a silence in agreement.” Lastly, Gallizzi turned to the controversy
surrounding District’s field trip policy.
He stated:

“Finally,
while trying to discern the proper approach to the dilemma of the equity
situation regarding field trips, my Cabinet and I approached this from a point
of view where everyone would be on a level playing field. Some schools have 20 times more field trips
than others. Public education is not a
place for haves and have nots. It is the
great social equalizer in the words of Horace Mann. Much to our surprise, that is not how some
felt. At a board meeting, staff came to the podium and basically said, like
the character Scar in The Lion King that life is not fair, and those children
and parents at those schools need to be taught that lesson and should also be
taught to work harder. It makes me
wonder that, if they felt comfortable enough to say that in a public forum,
then what do they say in the staff lounge, and what do they feel in their
hearts? Field trips are opportunities for learning and there cannot be an
opportunity gap in public education.
Oh, and all of us in the board room were silent and I take responsibility and publicly apologize for
that. [¶] We need to reflect as professionals why we
remain silent to such sentiments. . . .
[¶] This is the place to be if
you believe in learning for all.” (Most
italics added, boldface omitted.)





2. Jacobson’s
Lawsuit

In August 2011, Jacobson filed suit
against Gallizzi and District based upon the contents of the “Welcome Back”
message.href="#_ftn5" name="_ftnref5" title="">[5] She alleged causes of action for libel,
slander, intentional infliction of emotional distress, invasion of privacy, and
improper retaliation for having exercised her First Amendment rights. In pertinent part, she alleged:

“Defendant
Gallizzi, in essence, published the statement that led those who read, saw and
heard his videotaped ‘welcome’ speech, to believe that [Jacobson] was telling
students and parents that it was their fault there were not going to be any
field trips because they needed to work harder.
Defendant Gallizzi likened [Jacobson] to ‘Scar’ from The Lion King and
went on to explain that conduct like [Jacobson’s] was unacceptable and
troubling.”



“However,
by what defendant Gallizzi said to literally hundreds of individuals, it was
clear that he was retaliating against [Jacobson] by referring to her as a
character in a popular movie, a character that was cruel, heartless and
unsympathetic.”href="#_ftn6" name="_ftnref6"
title="">[6]






Jacobson sought compensatory and
punitive damages.



3. The
Special Motion to Strike

Citing section 425.16, defendants
moved to strike Jacobson’s complaint.
The defense evidence included the minutes of Board’s June
15, 2010
meeting, a declaration from Gallizzi, and a transcript of his “Welcome Back”
message.

Jacobson’s opposition included
declarations from three teachers, each of whom averred that they recognized
Jacobson as the individual referred to in Gallizzi’s message and were shocked
by his comments. A declaration from
Jacobson explained her position on field trips and opined at length about
Gallizzi’s motive and intent in referring to her in the “Welcome Back” message. Jacobson also furnished a transcript of her June
15, 2010
remarks at Board’s meeting and a Wikipedia entry about Scar. (See fn. 6, supra.) Lastly, Jacobson
tendered copies of District’s civility policy and an administrative regulation,
both of which Jacobson claimed that Gallizzi had violated.



4. >The Trial Court’s Ruling

The trial court ruled that the defense
had “failed to meet their burden to demonstrate that Defendant Gallizzi’s
Welcome Back message was made in furtherance of his constitutional right to
free speech” and therefore denied the special motion to strike.href="#_ftn7" name="_ftnref7" title="">[7]^{,href="#_ftn8" name="_ftnref8" title="">[8]}



>DISCUSSION

A. >An Anti-SLAPP Motion

“A special motion to strike is a
procedural remedy to dispose of lawsuits brought to chill the valid exercise of
a party’s constitutional right of petition or free speech. [Citation.]
The purpose of [section 425.16] is to encourage participation in matters
of public significance and prevent meritless litigation designed to chill the
exercise of First Amendment rights.
[Citation.] The Legislature has
declared that the statute must be ‘construed broadly’ to that end.” (>Fremont Reorganizing Corp. v.
Faigin (2011) 198
Cal.App.4th 1153, 1165.)

Section 425.16 “‘“establishes a
procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation.”’” (Flatley
v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley).) The statute posits a two-step process for
determining whether a cause of action is subject to a special motion to strike. “First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is
one arising from protected activity.
(§ 425.16, subd. (b)(1).) ‘A
defendant meets this burden by demonstrating that the act underlying the
plaintiff’s cause fits one of the categories spelled out in section 425.16,
subdivision (e)’ [citation]. If the
court finds that such a showing has been made, it must then determine whether
the plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]”
(Navellier v. Sletten (2002)
29 Cal.4th 82, 88 (Navellier).)



B. The
First Step in the Anti-SLAPP Motion:
Jacobson’s Claims Arise From


Protected Activity



We review de novo the trial court’s
ruling on a special motion to strike. (>Flatley, supra, 39 Cal.4th at p. 325.)
To decide whether defendants discharged their burden of demonstrating
that Jacobson’s complaint arose from constitutionally protected activity, we
review the operative pleading and the supporting and opposing affidavits
offered on the motion to strike. (>Brill Media Co., LLC v. TCW Group, Inc.
(2005) 132 Cal.App.4th 324, 329-330; see also § 425.16, subd. (b)(2).)

In determining whether a claim arises
from protected activity, as defined in section 425.16, subdivision (b)(1), the
“focus is not the form of the plaintiff’s cause of action but, rather, the
defendant’s activity that gives rise
to his or her asserted liability -- and whether that activity constitutes
protected speech or petitioning” as defined in section 425.16, subdivision
(e). (Navellier, supra, 29
Cal.4th at p. 92.) “[W]e disregard the
labeling of the claim [citation] and instead ‘examine the principal thrust or gravamen
of a plaintiff’s cause of action to determine whether [section 425.16] applies’
and whether the trial court correctly ruled on the . . . motion.” (Hylton
v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272.) In this case, it is clear that Gallizzi’s
“Welcome Back” message is the predicate of Jacobson’s lawsuit regardless of the
specific cause of action plead.

Protected speech within the meaning of
the anti-SLAPP statute includes “any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of
free speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subd.
(e)(4).) It “extends to statements and
writings of governmental entities and public officials on matters of public
interest and concern that would fall within the scope of the statute if such
statements were made by a private individual or entity.” (Vargas
v. City of Salinas (2009) 46 Cal.4th 1, 17.) The “public interest” component “is met when
‘the statement or activity precipitating the claim involved a topic of widespread
public interest,’ and ‘the statement . .
in some manner itself contribute[s] to the public debate.’” (>Huntingdon Life Sciences, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228,
1246.) The question whether something is
an issue of public interest “must be ‘“construed broadly.”’” (Gilbert
v. Sykes (2007) 147 Cal.App.4th 13, 23.)
As we now explain, Gallizzi’s message constitutes protected speech as
defined by this statutory provision.

The thrust of Gallizzi’s message—given
in his capacity as Superintendent and directed to and heard by teachers, school
staff, parents and students—was an exposition of what he believed to be the
mission of District’s schools: to create
a learning environment for all students.
It cannot be denied that the purpose of public education and the role
that teachers play in fulfilling that purpose are “issue[s] of public
interest” (§ 425.16, subd. (e)(4))
vigorously debated throughout the community.
It is appropriate to include in that debate a discussion about which
actions and attitudes by teachers either further or inhibit the goal of
creating a learning environment. Citing
examples of inappropriate behavior is an accepted pedagogical technique to
identify which conduct does and does not help reach a particular goal. Gallizzi’s veiled reference to Jacobson was
simply one of four examples he gave of what he believed was unprofessional
conduct—three of which went unanswered by colleagues when voiced, a fact that
also troubled Gallizzi—that inhibited fulfilling District’s mission.

Secondarily, Gallizzi used the
message, given at the beginning of the school year, to explain the rationale
for the new field trip policy. For
several years, field trips had been a topic of public interest discussed throughout
the community. Only three months
earlier, four individuals (including Jacobson) had addressed the new proposed
field trip policy at Board’s public meeting.
After the meeting, Gallizzi, pursuant to the direction of Board’s
President, convened a meeting of the Committee to make a final decision about
field trips. The decision was made to
pare them back and Gallizzi took the opportunity of presenting the “Welcome
Back” message to address the newly adopted policy which was certainly an “issue
of public interest” (§ 425.16, subd. (e)(4)) because it affected teachers,
students, parents and administrators employed by District.

We therefore conclude that the
entirety of Gallizzi’s “Welcome Back” message, including its references to what
Gallizzi believed represented negative attitudes by teachers (including
Jacobson), was constitutionally protected speech on issues of public
interest: the purpose of public
education, the role of public school teachers in furthering that purpose and
District’s field trip policy. (>Morrow v. Los Angeles Unified School Dist.
(2007) 149 Cal.App.4th 1424, 1436-1439 [school superintendent’s critical
statements about a school principal on whose campus incidents of racially
motivated student violence had occurred were statements about “an issue of
public interest”] and McGarry v.
University of San Diego (2007) 154
Cal.App.4th 97, 109-110 [statements by university officials explaining why the
head football coach was terminated were statements about “an issue of public
interest”]; see also Ghafur v. Bernstein
(2005) 131 Cal.App.4th 1230, 1238 [“‘Clearly, the governance of a public school
system is of the utmost importance to a community, and school board policies
are often carefully scrutinized by residents.’”].)

Jacobson’s contrary argument is not
persuasive. She simply argues that
Gallizzi’s statements “were not protected activity; there is no First Amendment
right to make false statements so the anti-SLAPP motion to strike fails.” (Capitalization omitted.) This argument misapprehends the two-step
process the trial court undertakes in ruling upon a special motion to
strike. The trial court is not required
to accept the plaintiff’s claim that unprivileged defamatory statements were
made and the defense is not required to show that no defamation occurred. Instead, the defense, in the first step of
the process, need only “present a prima facie showing that the plaintiff’s
causes of action arise from acts of the defendant taken to further the
defendant’s rights of free speech or petition in connection with a public
issue. [Citation.] Only if the defendant makes this prima facie
showing does the trial court consider the second step of the section 425.16, subdivision
(b)(1) analysis; at that point, the burden shifts to the plaintiff to make a
prima facie showing of facts which, if proven at trial, would support a
judgment in the plaintiff’s favor [for, e.g., defamation]. [Citation.]”
(Paul for Council v. Hanyecz
(2001) 85 Cal.App.4th 1356, 1365.)

Further, none of the cases cited by
Jacobson supports her argument that Gallizzi’s statements did not constitute
protected speech within the meaning of section 425.16, subdivision (e)(4). The vast majority of the cases involved fact
patterns in which the appellate courts concluded that the gravamen of the
plaintiff’s case was not the defendant’s constitutionally protected speech but,
instead, was conduct not protected by the First Amendment. (Scott
v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 415-423 [personal
injury action based upon the plaintiff’s use of dietary supplements arises from
the defendant’s manufacture and sale of a defective product, not the
manufacturer’s exercise of free speech even though the plaintiff included a
cause of action for false advertising]; Santa
Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308,
1317-1320 [action by local rent control board alleging that the landlords
sought to evade rent control statues is not subject to a motion to strike
because the landlords’ actions were not taken in furtherance of their
constitutional rights to petition or to exercise free speech];> Gallimore v. State Farm Fire & Casualty
Ins. Co. (2002) 102 Cal.App.4th 1388, 1397-1400 [lawsuit alleging that
insurer had mishandled claims is not subject to a motion to strike because the
defendant’s activities did not arise from speech in connection with a public
issue]; and Paul for Council v. Hanyecz,
supra, 85 Cal.App.4th at p. 1365 [campaign money laundering is “not a >valid activity undertaken by defendants
in furtherance of their constitutional right to free speech”].) In the other case cited by Jacobson, the
appellate court concluded that a statutory exemption to a special motion to
strike applied. (City of Long Beach v. California Citizens for Neighborhood Empowerment (2003)
111 Cal.App.4th 302 [legislative history of section 425.16, subdivision (d)
establishes that an action to enforce local laws governing campaign
contributions is not subject to a motion to strike].)



C. The
Second Step in the Anti-SLAPP Motion:
Jacobson Failed to Demonstrate


a Probability of Prevailing Upon Her Claims



Because defendants established that
Jacobson’s action arose from constitutionally protected speech, we turn to
whether Jacobson showed a probability of prevailing on her claims.href="#_ftn9" name="_ftnref9" title="">[9] In that regard, Jacobson was required to
“‘“‘demonstrate 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 [her] is credited.’”’
[Citation.]” (>Lin v. City of >Pleasanton (2009) 176 Cal.App.4th 408, 425.) We also consider the evidence offered by the
defense to determine whether it defeats Jacobson’s case as a matter of
law. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th
392, 398, and cases cited therein.) The
trial court must “grant the motion if, as a matter of law, the defendant’s
evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary
support for the claim.” (>Wilson v. Parker, Covert
& Chidester
(2002) 28 Cal.4th 811, 821.)

We find that Gallizzi’s “Welcome Back”
message was privileged, thereby establishing as a matter of law that Jacobson
did not and cannot demonstrate a probability of prevailing upon the merits.

Section 47 provides: “A privileged publication or broadcast is one
made: [¶] (a) In
the proper discharge of an official duty.”
The statute “confers privileged status upon any statement made by a
public official in the course of discharging his official duties.” (Royer
v. Steinberg (1979) 90 Cal.App.3d 490, 500.) The privilege applies to local officials, >including school superintendents, who
engage in the policy-making process and “protects any statement by a public
official, so long as it is made (a) while exercising policy-making functions,
and (b) within the scope of his official duties.” (Id.
at p. 501; Morrow v. Los Angeles Unified
School Dist., supra, 149 Cal.App.4th at pp. 1441-1442 [section 47 applies
to school superintendent].) The privilege
is absolute and precludes liability even if the defendant made defamatory
statements with actual malice. (>Saroyan v. Burkett (1962) 57 Cal.2d 706,
708-710.)

Further, “the executive privilege
broadly ‘encompass[es] all discretionary acts essential to the proper exercise
of an executive function’ decision.” (>Morrow v. Los Angeles Unified School Dist.,
supra, 149 Cal.App.4th at p. 1442.)
“‘Because a public official’s duty includes the duty to keep the public
informed of his . . . management of the public business, . . . public
statements by such officials are covered by the “official duty” duty
privilege.’” (Maranatha Corrections, LLC v. Department of Corrections &
Rehabilitation (2008) 158 Cal.App.4th 1075, 1089.) If the defense in a special motion to strike
establishes that the statements underlying the plaintiff’s action are
privileged under section 47, the trial court is required to grant the
motion. (Id. at pp. 1086-1091.)

As Superintendent, Gallizzi is “the
chief executive officer of the governing board of the district.” (Ed. Code, § 35035, subd. (a).) In that capacity, he gave his “Welcome Back”
message at the beginning of the 2010-2011 school year. The message was District’s mission statement
for the new school year. Not only was
the message required viewing for all teachers but it was also disseminated to
school staff, parents and students. In
this public message, Gallizzi set forth his theme for the year and what he
hoped to accomplish. In that context, he
gave four examples of what he believed to be inappropriate or negative
attitudes of teachers that could undermine the goal of creating a learning
environment for all of the students. In
the example that indirectly referenced Jacobson, Gallizzi also addressed the
public controversy surrounding the change in the field trip policy and
explained why the decision to limit the number of field trips had been
made. This type of annual communication
at the beginning of a school year explaining policy is part and parcel of
effective administration of a public school district and is therefore covered
by the absolute privilege found in section 47.
(See, e.g., Kilgore v. Younger
(1982) 30 Cal.3d 770, 782 [section 47 applies to the Attorney General’s press
conference during which he released a report that suggested the plaintiff was
involved in criminal activity]; Saroyan
v. Burkett, supra, 57 Cal.2d at pp. 710-711 [section 47 applies to the
Superintendent of Banks’ public statements critical of the plaintiff];> Maranatha Corrections, LLC v. Department of
Corrections & Rehabilitation, supra, 158 Cal.App.4th at pp. 1087-1091
[section 47 applies to the Director of Corrections’ public release of a letter
critical of a contractor and explaining the decision to terminate its
contract]; Morrow v. Los Angeles Unified
School Dist., supra, 149 Cal.App.4th at pp. 1440-1443 [section 47 applies
to the school superintendent’s statements critical of a school principal];
and Royer
v. Steinberg, supra, 90 Cal.App.3d at pp. 500-503 [section 47 applies to a
school district’s board of trustees’ public statement explaining its reasons
for demoting the superintendent].)

Jacobson’s respondent’s brief contains
no argument about section 47 although defendants’ opening brief discussed the
statutory provision at length.href="#_ftn10"
name="_ftnref10" title="">[10] Our conclusion that the absolute privilege
applies makes it unnecessary to discuss any of Jacobson’s arguments unrelated
to the privilege, to consider whether Jacobson demonstrated a probability of
prevailing based upon an analysis of the elements of each cause of action, or
to reach any of defendants’ alternative theories as to why the motion to strike
should have been granted.



D. Attorney
Fees

“[A] defendant who prevails on a
section 425.16 motion is entitled to an award of attorney fees [citation],
including attorney fees for the appeal [citation].” (Vergos
v. McNeal (2007) 146 Cal.App.4th 1387, 1404; see also Morrow v. Los Angeles Unified School Dist., supra, 149 Cal.App.4th
at p. 1446.) Accordingly, we reverse the
trial court’s order denying the special motion to strike and remand the cause
to the trial court to determine, among other things, the amount of attorney
fees to which defendants are entitled.

>DISPOSITION

The
trial court’s order denying defendants’ motion to strike under section 425.16
is reversed. The matter is remanded with
instructions to vacate the order, to enter a new order granting the motion, to
dismiss Jacobson’s complaint with prejudice, and to award attorney fees to
defendants (including attorney fees on appeal) in an amount it will
determine. Defendants are to recover
their costs on appeal.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





WILLHITE,
J.





We
concur:







EPSTEIN,
P. J.







SUZUKAWA, J.