James K. Ward, Esq. (Sbn 117639) Daniel P. Jay, Esq

Case 2:09-cv-02992-JAM -KJM Document 75 Filed 07/16/10 Page 1 of 11

1 JAMES K. WARD, ESQ. (SBN 117639) DANIEL P. JAY, ESQ. (SBN 215860) 2 EVANS, WIECKOWSKI & WARD, LLP 745 University Avenue 3 Sacramento, CA 956825 Tel: (916)923-1600 4 Fax: (916)923-1616

5 Attorneys for Defendant(s) CAMERON PARK COMMUNITY SRVICES DISTRICT 6

8 UNITED STATES DISTRICT COURT 9 Eastern District of California 10 Sacramento Division 11 TAMMY MEFFORD, ) Case No.: 2:09-CV-02992 JAM-KGM 12 ) Plaintiff(s), ) ORDER ON DEFENDANTS’ (CAMERON 13 ) PARK COMMUNITY SERVICES ) DISTRICT, DAVID JOHNSON, ALAN vs. 14 ) CLARKE) SPECIAL MOTION TO ) STRIKE (Anti-Slapp) [CCP 425.16] 15 CAMERON PARK COMMUNITY ) SERVICES DISTRICT, a public entity; ) Date; June 30, 2010 16 ) Time: 9:30 a.m. ALAN CLARKE, an individual; DAVID M. ) Dept.: 6 17 JOHNSON, an individual and; KENNETH E. ) CATER an individual ) Before the Honorable John Mendez 18 ) ) Defendant(s). 19 ) ) 20

21 The respective Anti-SLAPP Special Motions to Strike (California Code of Civil

22 Procedure § 425.16) by Defendants, Cameron Park Community Services District, David M. 23 Johnson and Alan Clarke came on for hearing in Department 6 on June 30, 2010. Michael 24 Ahmad appeared on behalf of Plaintiff Tammy Mefford. James K. Ward appeared on behalf of 25

26 Cameron Park Community Services District. Domenic Spinelli appeared on behalf of David M.

27 Johnson. Derek Haynes appeared on behalf of Alan Clarke.

[PROPOSED] ORDER ON ANTI-SLAPP MOTION TO STRIKE- 1 Case 2:09-cv-02992-JAM -KJM Document 75 Filed 07/16/10 Page 2 of 11

1 After full consideration of the written and oral submissions by the parties, the Court rules

2 as follows: 3 The Court grants each Defendant’s Motion to Strike as to Plaintiff’s eighth, ninth, and 4

5 tenth causes of action.

6 The Court notes that Plaintiff did argue, as a preliminary matter, that if the Court was

7 inclined to grant these Motions to Strike, that she should be given an opportunity to conduct 8 discovery to make a prima facie showing of fact to demonstrate that she will prevail at trial. The 9 Court finds that in doing so that Plaintiff has incorrectly read Rogers v. Home Shopping Network, 10

11 Inc., (Central Dist. CA 1999) 57 F.Supp.2d 973, to hold that the Special Motion to Strike must

12 be used as a summary judgment motion. While it is true that a Special Motion to Strike may be

13 used as a summary judgment motion, this will occur only in those cases where the motion is 14 based on a plaintiff’s alleged failure of proof. A Special Motion to Strike must be decided 15 pursuant to the standards of FRCP Rule 12(b)(6) or Rule 56. “If a defendant makes a special 16

17 motion to strike based on the alleged deficiencies in the plaintiff’s complaint, the motion must be

18 treated in the same manner as a motion under Rule 12(b)(6) except that the attorney’s fee

19 provision of Section 425.16(c) applies.” (Rogers v. Home Shopping Network, Inc., (Central Dist. 20 CA 1999) 57 F.Supp.2d 973, 983.) 21 In this case before this Court, the Defendants’ Motions to Strike are based on the 22

23 deficiencies in the Plaintiff’s First Amended Complaint. Defendants all argue that Plaintiff

24 alleges no facts to support her theory that Defendants’ speech was not protected. And in this 25 case, the Court has treated these three Anti-SLAPP motions as motions to dismiss pursuant to 26 Rule 12(b)(6) of the Federal Rules of Civil Procedure. 27

28 Eighth Cause of Action for Invasion of Privacy (False Light)

[PROPOSED] ORDER ON ANTI-SLAPP MOTION TO STRIKE- 2 Case 2:09-cv-02992-JAM -KJM Document 75 Filed 07/16/10 Page 3 of 11

1 In terms of the eighth cause of action the Court finds that the Plaintiff has not alleged

2 facts to meet the elements of this claim. The Defendants have demonstrated that their alleged 3 statements were made in a public forum and related to an issue of public concern. 4

5 Specifically, the Defendants criticized Plaintiff’s work performance and professional

6 competence in front of her staff and the public. By doing so, that does not support a cause of

7 action for publication of private facts in a false light because the facts in this case, as alleged, 8 were an issue of public concern. 9 As the general manager of a community services district, the Plaintiff was the highest 10

11 level management appointee who was directly responsible to the board of directors for the

12 implementation of policies established by the board of directors. Public discussion about the

13 qualifications of those who hold or wish to hold positions of public trust presents the strongest 14 possible case for application of the safeguards afforded by the First Amendment. (Damon v. 15 Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) 16

17 Plaintiff has alleged that the offending statements related to her work at the district.

18 Thus, by her own admission, Defendants’ statements are protected because her work as the

19 general manager of the district is an issue of public interest. As the general manager of the 20 district, Plaintiff was in charge of an entity that provided vital public services. Plaintiff has not 21 identified any fact to dispute the importance of her position or how her employment would not 22

23 greatly affect the public interest.

24 There are also no factual allegations regarding an improper disclosure of Plaintiff’s 25 employment information in the Plaintiff’s First Amended Complaint as it stands now. Although 26 Plaintiff contends that some of the Defendants’ statements were made during private 27

28 conversations, she does not address in her opposition the fact that private conversations

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1 regarding public issues are also protected under the Anti-SLAPP statute. (Averill v. Superior

2 Court (1996) 42 Cal.App.4th 1170, 1175.) 3 Further, although Plaintiff argues that information regarding personal employment 4

5 matters is private, Plaintiff has failed to address the fact that not all information regarding

6 employment matters are private and confidential, especially those that relate to employees with

7 important public functions. 8 Plaintiff has raised an argument that the Defendants released two pages of a confidential 9 investigative report. However, that allegation does not appear anywhere in either the original 10

11 complaint or the First Amended Complaint. This allegation is only found in Plaintiff’s

12 declaration, which the Court has considered only for purposes of whether it should grant leave to

13 amend. 14 Plaintiff, in short, cannot ignore the deficiencies of the First Amended Complaint and re- 15 characterize her factual allegations through her recently submitted declaration. As such, Plaintiff 16

17 has not demonstrated that she will prevail on her eighth cause of action. For that reason, the

18 Defendants’ motions to strike the eighth cause of action are granted.

19 Ninth Cause of Action for Invasion of Privacy (Public Disclosure of Private Facts) 20 The ninth cause of action is for invasion of privacy, public disclosure of private facts. 21 Defendants have argued that, for the same reasons that Plaintiff’s eighth cause of action is 22

23 protected by the First Amendment, so too is Plaintiff’s ninth cause of action and, thus, it should

24 be stricken. The Court agrees. 25 To prevail on the ninth cause of action, the plaintiff must prove that there was a public 26 disclosure of private facts which would be offensive and objectionable to a reasonable person 27

28 and which is not of legitimate public concern.

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1 Again, in this case Plaintiff has admitted in her First Amended Complaint that

2 Defendants’ statements were made in a public forum by alleging that on numerous occasions, 3 and in a public forum, Defendants spoke openly to the public regarding Plaintiff’s private 4

5 employment affairs. (First Amended Complaint at ¶ 87) Plaintiff’s contention that information

6 regarding her employment is private is not supported by these allegations. Rather, the alleged

7 statements were made in connection to an issue of public interest as required under California 8 Code of Civil Procedure § 425.16(e). 9 Again, as general manager of a governmental entity, Plaintiff’s job performance, 10

11 including her employment affairs and professional reputation, are matters of public concern.

12 (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, see also Aisenson v.

13 American Broadcasing Company (1990) 220 Cal.Ap.3d 146.) 14 Plaintiff has not alleged in the First Amended Complaint that Defendants discussed any 15 private facts relating to Plaintiff and Plaintiff’s performance as the general manager of the 16

17 district was a public issue because she was charged with implementing public policies as

18 determined by the board of directors.

19 In Morrow v. Los Angeles Unified School District, the court noted that the public has a 20 significant interest in the professional competence and conduct of public officials and that debate 21 over such issues “lies at the heart of the First Amendment.” (Morrow v. Los Angeles Unified 22

th 23 School District (2007) 149 Cal.App.4 1424, 1436-1437.)

24 In this case, Plaintiff’s First Amended Complaint makes it clear that the board was 25 concerned with her management of the district, and the statements complained of dealt with her 26 job performance. Thus, the manner in which Plaintiff exercised her discretion as the general 27

28 manager of the district was a matter of public concern and is subject to legitimate public debate.

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1 As such, Plaintiff cannot maintain her ninth cause of action, and it also is stricken under the

2 Anti-SLAPP provisions of Section 425.16 of the California Code of Civil Procedure. 3 Tenth Cause of Action for Defamation 4

5 The Defendants argue that the tenth cause of action infringes upon their freedom of

6 speech pursuant to California Code of Civil Procedure Section 425.16. Defendants also contend

7 that any statement in which Plaintiff bases her defamation claim concerned a matter of public 8 interest because it was based on Plaintiff’s performance as general manager of the district. 9 Plaintiff has asserted and alleged that the statements made by Defendants were made with 10

11 malice and in retaliation for her complaints of discrimination and harassment. Plaintiff has

12 argued that statements were made to private citizens outside of any official duty and outside of

13 any judicial proceeding. Plaintiff also argued that the release of two pages of the confidential 14 investigative report was not privileged. These allegations are not contained in the First Amended 15 Complaint. 16

17 The Court finds that Plaintiff has not alleged facts to support the tenth cause of action for

18 defamation. Under California Civil Code section 45, defamation is the false and unprivileged

19 publication which exposes any person to hatred, contempt, ridicule or obloquy or which has the 20 tendency to injure him in his occupation. Plaintiff’s allegations demonstrate that Defendants’ 21 statements were made during the discharge of official duties and therefore those statements are 22

23 rendered privileged under California Civil Code section 47. (Paragraphs 49 and 51 of the First

24 Amended Complaint.) 25 Moreover, Defendants’ statements are protected by the executive officer privilege of 26 California Civil Code section 47(a). That section provides that “a privileged publication or 27

28 broadcast is one made in the proper discharge of an official duty.” Plaintiff has admitted in her

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1 First Amended Complaint that at all times relevant, Defendants Johnson and Clarke, as CPCSD

2 board members, were agents for CPCSD, and each of the acts done by them which are 3 complained of herein was done under the color of authority of that public entity. Thus, by that 4

5 allegation and admission, Johnson and Clarke, and therefore the District, are protected by the

6 executive privilege as any statements allegedly made by them were in the context of their official

7 duties and authority as members of the board of directors of CPCSD. 8 Although Plaintiff also alleges that Defendants’ statements were “not communicated in 9 the course of the board’s business,” (First Amended Complaint at ¶ 93) virtually the same 10

11 contention was analyzed and dismissed in the Morrow case. In that case the plaintiff was a high

12 school principal who was terminated after three fights occurred at the school. The

13 Superintendent of Schools made statements to a newspaper reporter regarding the school’s need 14 for stronger leadership and the inconsistency of the plaintiff’s retirement plans with the needs of 15 the school. An Anti-SLAPP motion to strike was filed. The plaintiff argued that the executive 16

17 privilege could not apply to the Superintendent because he was not exercising a policymaking

18 function when he made the statements to the newspaper. The Morrow court determined that the

19 executive privilege broadly encompasses all discretionary acts essential to the proper exercise of 20 an executive function decision. (Morrow v. Los Angeles Unified School District (2007) 149 21 Cal.App.4th 1424, 1442, citing Copp v. Paxton (1996) 45 Cal.App.4th 829.) 22

23 In the case before this Court, the Defendants made an executive function decision when

24 they discussed Plaintiff’s performance and the implications of the performance on whether to 25 renew Plaintiff’s contract. Therefore, the executive privilege does apply and Plaintiff cannot 26 meet her burden of demonstrating a probability of prevailing on her defamation claim. As such, 27

[PROPOSED] ORDER ON ANTI-SLAPP MOTION TO STRIKE- 7 Case 2:09-cv-02992-JAM -KJM Document 75 Filed 07/16/10 Page 8 of 11

1 the tenth cause of action is stricken pursuant to the Anti-SLAPP provisions and the executive

2 officer privilege. 3 For those reasons, the motions to strike Plaintiff’s eighth, ninth, and tenth causes of 4

5 action are granted.

6 Leave to Amend

7 In this case the Court finds that granting leave to amend would be futile and that there are 8 no circumstances and no allegations which have been presented to the Court, even through the 9 declaration of the Plaintiff, that would give rise to a cause of action and maintain a cause of 10

11 action under these three claims. For those reasons, the Court denies Plaintiff’s request for leave

12 to amend.

13 THEREFORE IT IS ORDERED that the Anti-SLAPP Special Motions to Strike 14 (California Code of Civil Procedure § 425.16) against Plaintiff’s 8th cause of action for Invasion 15 of Privacy (False Light), 9th cause of action for Invasion of Privacy (Public Disclosure of Private 16 th 17 Facts), and 10 cause of action for Defamation filed on behalf of Defendants Cameron Park

18 Community Services District, David M. Johnson, and Alan Clarke are hereby granted without

19 leave to amend. 20 IT IS SO ORDERED: 21

22 Dated: July 15, 2010 /s/ John A. Mendez 23 UNITED STATES DISTRICT JUDGE 24

[PROPOSED] ORDER ON ANTI-SLAPP MOTION TO STRIKE- 8 Case 2:09-cv-02992-JAM -KJM Document 75 Filed 07/16/10 Page 9 of 11

1 Approved as to form: 2 3 Dated: July 15, 2010 EVANS WIECKOWSKI & WARD, LLP

4 By: /s/ James K. Ward 5 James K. Ward Attorney for Defendant 6 CAMERON PARK COMMUNITY SERVICES DISTRICT 7

8 Dated: July 15, 2010 Law Offices of Mary-Alice Coleman

10 By: /s/Michael Ahmad Michael Ahmad 11 Attorneys for Plaintiff TAMMY MEFFORD 12

13 Dated: July 15, 2010 LAPLANTE SPINELLY & DONALD

15 By: /s/Domenic Spinelli Domenic Spinelli 16 Attorneys for Defendant DAVID M. JOHNSON 17

18 Dated: July 15, 2010 PORTER SCOTT

20 By: /s/Carl L. Fessenden Carl L. Fessenden 21 Derek J. Haynes Attorneys for Defendant 22 ALAN CLARKE

23 24

[PROPOSED] ORDER ON ANTI-SLAPP MOTION TO STRIKE- 9 Case 2:09-cv-02992-JAM -KJM Document 75 Filed 07/16/10 Page 10 of 11

1 DECLARATION OF SERVICE [Federal Rules of Civil Procedure, Rule 5(b)] 2 [CCP ''1011, 1012, 1012.5, 1013 and 1013a]

3 I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in the within-entitled case. I am an employee of EVANS, WIECKOWSKI & WARD, LLP, and my business address is 745 University Avenue, Sacramento, California 95825. 5 On this date, I served the following document:

7 __x_ by causing a true copy thereof to be delivered to the party or parties at the address(es) 8 listed below, by and/or through the services of:

9 __x_ Electronic Mail

10 Law Office of Mary-Alice Coleman Domenic Spinelli 11 Mary-Alice Coleman Laplante Spinelli & Donald 12 Thomas B. Gill 815 S Street 2 Fl 1109 Kennedy Place, Suite #2 Sacramento, CA 95814 13 Davis, CA 95616 T: (916)448-7888 T: (916)498-9131 F: (916)448-6888 14 F: (916)304-0880 MailTo:[email protected] 15 MailTo:[email protected]

16 Anthony Diepenbrock William Schmidt DIEPENBROCK & COTTER William Schmidt and Associates 17 1545 River Park Dr., #201 1419 21st Street 18 Sacramento, CA 95815 Sacramento, CA 95814 T: (916)565-6222 T: (916)447-2451 19 F: (916)565-6220 F: (916)447-8066 MailTo:[email protected] MailTo:[email protected] 20 m 21 Carl L. Fessenden, Esq. 22 PORTER SCOTT 23 350 University Ave., Ste. 200 Sacramento, CA 95825 24 MailTo:[email protected]

25 26 I am familiar with the business practice of EVANS, WIECKOWSKI & WARD, LLP, with regard to collection and processing of documents for mailing with the United States Postal 27 Service. The documents described above were sealed and placed for collection and mailing on the date stated below. Pursuant to said business practices, documents were deposited with the 28 United States Postal Service in Sacramento, California, that same day in the ordinary course of business.

[PROPOSED] ORDER ON ANTI-SLAPP MOTION TO STRIKE- 10 Case 2:09-cv-02992-JAM -KJM Document 75 Filed 07/16/10 Page 11 of 11

1 I declare under penalty of perjury that the foregoing is true and correct and that this 2 Declaration was executed at Sacramento, California, on March____, 2010. 3 ______4 Andrea Cervantes

[PROPOSED] ORDER ON ANTI-SLAPP MOTION TO STRIKE- 11