copied Turnbull’s medical off-work note and gave it to Davis. Griggs gave the note to
Davis for the purpose of intimidating Turnbull into not pursuing her claims that Davis
misappropriated LVUSD funds.
The fourth and fifth causes of action concern Davis accepting the off-work note
from Griggs. The act of accepting a note is not a statement or writing made by Davis.
Additionally, there is no declaration from Davis or Griggs explaining where the note
was given to Davis, assuming the allegation is true. As a result, there is nothing
indicating the note was given to Davis in a place open to the public or in a public forum.
As a result, defendants have not shown Davis’s acceptance of the note is protected as a
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“written or oral statement or writing made in a place open to the public or a public
forum.” (§ 425.16, subd. (e)(3).)
Next, we examine if Davis’s acceptance of the note was “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).) As set forth ante, the off-work note was allegedly given to Gasper, who
published the information on social media. It is unclear what, if anything, Gasper wrote
on social media. As a result, we do not know if Gasper’s comments related to
Turnbull’s absence from LVUSD board meetings. Therefore, defendants have failed to
establish Davis’s alleged acceptance of the off-work note was conduct in furtherance of
Gasper’s right of free speech in connection with a public issue or issue of public
interest. (§ 425.16, subd. (e)(4).)
Defendants contend Turnbull’s fourth and fifth causes of action arise from
protected activity because the allegations concern conduct that “occurred in a public
forum, by public officials, during public meetings regarding a public matter.”
Defendants do not provide a record citation (Cal. Rules of Court, rule 8.204(a)(1)(C)),
nor do defendants explain what portion of the record reflects Davis accepted the
medical off-work note from Griggs during a public meeting. Accordingly, we find
defendants’ argument to be unpersuasive.
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4. THIRD CAUSE OF ACTION
a. Procedural History
The third cause of action is based upon an alleged violation of Civil Code section
52.1 which prohibits interference “by threat, intimidation, or coercion . . . with the
exercise or enjoyment by any individual . . . of rights secured by the Constitution or
laws of the United States, or of the rights secured by the Constitution or laws of this
state.” (Civ. Code, § 52.1, subd. (a).) The alleged victim may sue the alleged harasser
for civil damages. (Civ. Code, § 52.1, subd. (b).)
In the third cause of action, Turnbull alleged (1) Courtney pressured Turnbull to
resign from the LVUSD board; (2) Courtney threatened to have Turnbull recalled from
the LVUSD board; and (3) Courtney used LVUSD’s resources to support the efforts to
recall Turnbull. Courtney allegedly used LVUSD’s resources in the following manner:
(a) during the July 8, 2015, LVUSD board meeting board members discussed gathering
signatures for the recall; (b) during the September 1, 2015, LVUSD board meeting
board members insisted on proceeding with recall efforts; (c) during the September 15,
2015, LVUSD board meeting Courtney said “that they needed to take steps to stop
Dawn Turnbull which included ‘. . . report[ing] this to the authorities’ going to
[OGSD]”; (d) Courtney and Buchanan telephoned OGSD several times concerning
Turnbull; (e) Courtney posted, on his personal Facebook page, that Turnbull should be
fired from OGSD.
Turnbull alleged that using LVUSD’s resources to support the recall was a
violation of Education Code section 7054, subdivision (a), which provides, “No school
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district . . . funds, services, supplies, or equipment shall be used for the purpose of
urging the support or defeat of any ballot measure or candidate, including, but not
limited to, any candidate for election to the governing board of the district.” The statute
further provides that any violation of the statute “shall be a misdemeanor or felony
punishable by imprisonment in a county jail.” (Educ. Code, § 7054, subd. (c).)
b. Clarifying the Cause of Action
We seek to clarify the basis of Turnbull’s third cause of action. A violation of
Education Code section 7054 is a crime. Therefore, Turnbull is not suing for a violation
of Education Code section 7054 because this case is a civil matter. As a result, the
various ways in which Courtney allegedly used LVUSD resources to support the efforts
to recall Turnbull are not pertinent to the third cause of action.
Civil Code section 52.1 is the legal basis for the third cause of action. Civil Code
section 52.1 concerns interfering with a person’s constitutional rights by threatening,
intimidating, or coercing the person. (Civ. Code, § 52.1, subd. (a).) The alleged acts
associated with Civil Code section 52.1 are (1) Courtney pressured Turnbull to resign
from the LVUSD board, and (2) Courtney threatened to have Turnbull recalled.
Turnbull alleges Courtney pressured and threatened her because Turnbull
objected to various misdeeds by Davis and LVUSD board members, such as (1) gifting
thousands of dollars’ worth of ovens to friends of LVUSD board members; (2) failing to
address missing student lunch funds; and (3) awarding a construction contract to
Courtney’s family business without proper disclosures and recusals.
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c. Analysis
Defendants contend the third cause of action arises from protected activity.
We examine whether the threats and pressure are protected as statements or
writings “made in a place open to the public or a public forum in connection with an
issue of public interest.” (§ 425.16, subd. (e)(3).) It is unclear from the complaint when
and where the threats and pressure allegedly occurred. It is possible that Turnbull is
referring to the release of the medical off-work note as a threat and pressure. In the
general allegations section of the complaint, Turnbull alleges the off-work note was
published on social media for the purpose of intimidating Turnbull. Thus, it is possible
Turnbull is alleging the release of the medical note constituted the pressure and/or
threat.
However, within the third cause of action, Turnbull alleges Courtney “threatened
to recall [Turnbull].” That allegation implies that Courtney made a threat expressly
concerning a potential recall. As a result, it is unclear if Turnbull is asserting the release
of the medical note constituted the pressure and threats. Because the complaint is vague
as to when and where the threats and pressure occurred, it cannot be concluded from the
face of the complaint that the threats and pressure occurred in a place open to the public
or in a public forum.
In Courtney’s declaration, he explains that at the April 15, 2015, LVUSD board
meeting, the board censured Turnbull and voted in favor of requesting Turnbull’s
resignation. It is possible that the April 15 vote constitutes the pressure to resign, in
which case the pressure occurred during an LVUSD board meeting, which means it
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happened in a place open to the public or a public forum. (See Salma v. Capon (2008)
161 Cal.App.4th 1275, 1286 [using a declaration to understand a vague pleading];
Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-1420 [same].)
Turnbull filed a declaration in opposition to the anti-SLAPP motion. In the
declaration, Turnbull declared, “Defendant[s] by their retaliatory action, calculated to
intimidate me, have violated California Civil Code [section] 52.1(b) as stated in the
complaint.” It is unclear from Turnbull’s declaration when and where the pressure and
threats allegedly occurred.
In Turnbull’s respondent’s brief, when explaining the second prong of the anti-
SLAPP analysis (probability of prevailing), she refers to a threat made by Courtney on
Facebook. Courtney allegedly said he would like to see Turnbull publicly stoned and
that he “could still throw a mean fastball.” It is unclear if this is the threat to have
Turnbull recalled because there is no mention of a recall in the alleged threat. In
Turnbull’s opposition to the anti-SLAPP motion, she asserts defendants retaliated
against her on social media and in personal e-mails.
Turnbull’s third cause of action is vague, which means one can only speculate as
to the basis for the third cause of action. Courtney’s declaration permits speculation
that the “pressure” portion of the third cause of action concerns Courtney’s acts at an
LVUSD board meeting; however, Turnbull’s documents reflect the claim could be
based upon the release of the medical note, posts on social media, and/or personal e-
mails.
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Defendants assert websites open to the public are public forums, and therefore
Facebook posts would be protected activities. Defendants do not cite to evidence
reflecting these particular Facebook pages were open to the public, e.g., defendants do
not provide a record citation to evidence regarding the privacy settings on the pages.
Accordingly, it cannot be concluded that these particular Facebook pages were open to
the public.
Because Courtney does not assert that he only interacted with Turnbull at
LVUSD board meetings or on publicly accessible websites, defendants have not
established that the alleged pressure and threats occurred in a place “open to the public
or a public forum.” (§ 425.16, subd. (e)(3); Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67 [the moving defendant bears the burden of proving
protected activity].) In sum, defendants have not met their burden of establishing the
third cause of action arises from protected activity.
Defendants assert Turnbull’s third cause of action arises from protected activities
because “[e]ach and every factual allegation . . . involves deliberations and statements
made during a Board meeting, by members of the Board.” Defendants cite to
Turnbull’s allegations concerning the alleged misuse of LVUSD board resources (Educ.
Code, § 7054, subd. (c)), which, as explained ante, is not the basis for Turnbull’s third
cause of action.
Further, the alleged misuse of resources took place after the pressure and threats.
Turnbull alleged that she refused to resign despite pressure and threats, and then
Courtney allegedly used LVUSD resources to support the recall effort against Turnbull.
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Specifically, Turnbull alleged, “Courtney pressured [Turnbull] into resigning and when
that failed, threatened to recall [Turnbull] and when that failed, putting [sic] [LVUSD’s]
resources behind recalling [Turnbull] . . . .” Defendants’ argument is not persuasive
because it focuses on what occurred at LVUSD board meetings after the alleged
pressure and threats. Because defendants do not explain why the alleged pressure and
threats constitute protected activity, we find their argument to be unpersuasive.
D. CONCLUSION
Defendants have failed to establish that the allegations in the complaint arise
from protected activities. Accordingly, we do not examine the second prong of the anti-
SLAPP analysis, which is the plaintiff’s probability of prevailing on the merits.
(§ 425.16, subd. (b)(1).)
E. DISMISSAL
Turnbull contends defendants’ appeal should be dismissed because, in the clerk’s
transcript, the trial court’s order denying the anti-SLAPP motion is set forth in a minute
order rather than a signed order, and a signed order is not attached to defendants’
December 13, 2016, notice of appeal. On January 26, 2017, defendants filed an
amended civil case information statement with this court that included a formal order
denying the anti-SLAPP motion. The formal order denying the anti-SLAPP motion was
filed in the trial court on January 23, 2017. On February 6, 2017, this court filed an
order construing defendants’ notice of appeal as being from the formal order dated
January 23, 2017. (Cal. Rules of Court, rule 8.104(d).) In other words, this court has
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already addressed this issue. The error in the lack of formal order has been cured.
Accordingly, we deny Turnbull’s request to dismiss the appeal.
DISPOSITION
The order is affirmed. Respondent is awarded her costs on appeal. (Cal. Rules
of Court, rule 8.278(a).)
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
21
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendants failed to meet their burden of demonstrating that the plaintiff's causes of action arose from protected activity under the anti-SLAPP statute. Consequently, the trial court's order denying the anti-SLAPP motion was affirmed.
Issues
Whether the plaintiff's causes of action for disclosure of medical information, invasion of privacy, and civil rights violations arose from protected activity under Code of Civil Procedure section 425.16.
Whether the defendants established that the alleged acts of disclosing medical information and making threats occurred in a public forum or in connection with an issue of public interest.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court found defendants failed to demonstrate that Turnbull’s medical information was disclosed during a LVUSD board meeting or during LVUSD board discussions, or that it was matter of public interest.”