MORROW v. LOS ANGELES UNIFIED SCHOOL DISTRICT

Filed 4/20/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Susan Bryant-Deason, Judge. Affirmed.

Parker & Covert and Henry R. Kraft for Plaintiff and Appellant.

Jones Day, Deborah C. Saxe and Geoffrey P. Forgione for Defendants and Respondents.

_____________________________________

On June 1, 2005, the Los Angeles Times reported Jefferson High School principal Norman K. Morrowplaintiff and appellant in this appealwould be replaced the next month amid criticism by city and school district officials over his handling of a spate of student brawls that many say have been fueled by racial tensions. Local superintendent Rowena LaGrosa of the Los Angeles Unified School District (LAUSD) reportedly stated that Morrow would be replaced six months before his planned retirement. The newspaper further related that Superintendent of Schools Roy Romer voiced the need for stronger leadership at Jefferson, saying in an interview that Morrow had retirement plans that did not fit with the districts needs. The principals handling of the recent violence had accelerated a decision to replace him, Romer said.

Morrow sued the school district, Romer, and LaGrosa alleging that their statements to the press invaded his privacy (the first cause of action) and defamed him (the sixth cause of action). The trial court granted defendants motion to dismiss the invasion of privacy and defamation causes of action pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute).^[1] Morrow timely appeals, contending the trial court erred in finding: (1) the dismissed causes of action arose from defendants constitutionally protected speech activity; and (2) Morrow failed to demonstrate a probability of prevailing on either claim. In connection with these arguments, Morrow challenges the trial courts evidentiary rulings that struck numerous statements from the two declarations Morrow submitted in opposition to the anti-SLAPP motion. Finally, he argues the trial courts award of attorney fees to defendants should be reversed. We affirm, finding the challenged statements were constitutionally protected, revealed no private information, and the trial court did not abuse its discretion in making its evidentiary rulings or in ordering attorney fees.

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Plaintiffs Allegations

Morrow became the principal of Jefferson High School in 2001, after serving with distinction as principal of several inner city schools. Jefferson had traditionally been a low-achieving secondary school. Under his leadership, numerous improvements were made to the school and Jeffersons academic standing improved significantly. A series of violent campus disturbances among students occurred on April 14, April 18, and May 24, 2005. Several students were injured; others were arrested. According to Morrow, Romer and LaGrosa falsely blamed him for the disturbances, which he attributed to defendants failure to provide Jefferson with sufficient security personneldespite his repeated requests. In essence, Morrow alleged defendants invaded his privacy and defamed him by making statements to a reporter that were published in a Los Angeles Times report on June 1, 2005 (some of which were repeated in a June 15 report). The statements were critical of his handling of the incidents and disclosed Morrows purported retirement plans. Morrow was removed as principal of Jefferson and reassigned to a desk job within the school district. He retired on January 27, 2006, having been forced out of the district. He alleges that the negative comments by Romer and LaGrosa, along with the decision to remove him as principal of Jefferson, caused him humiliation, embarrassment, pain and suffering, and damage to his professional reputation resulting in pecuniary losses.

With regard to his invasion of privacy claim, Morrow alleged that defendants disclosures to the Los Angeles Times concerning his handling of the campus disturbances amounted to a performance evaluation, which should have been conducted in a closed session of the school board pursuant to Government Code section 54957. In his defamation claim, Morrow alleged Romer wrongfully made the following false and damaging statements to the Los Angeles Times reporter, which were published in the newspaper stories on June 1 and 15: (1) stronger leadership was needed at Jefferson (implicitly disparaging Morrows leadership ability); (2) Morrow had retirement plans that did not fit with the Districts needs; and (3) Morrows handling of the April and May 2005 disturbances had accelerated a decision to replace him.^[2]

Defendants Evidence

In support of their anti-SLAPP motion, defendants submitted declarations by LaGrosa and Romer. LaGrosa stated that at the time of the relevant incidents, she was superintendent of the local district responsible for Jefferson. She was one of Morrows supervisors; Romer was LaGrosas supervisor. She spent a lot of time at Jefferson following the riots and formed the opinion that Morrow was not providing strong leadership and should be replaced at the end of the school year. LaGrosa informed Romer that her decision to replace Morrow was based on Morrows handling of the student disturbances. She met with Morrow after the second or third student fracas to discuss his future plans. LaGrosa told Morrow that she had heard he was planning to retire from the school district and was looking for a new job. Morrow said he did plan to retire, but for financial reasons did not want to leave the district until January 2006. According to LaGrosa, Morrow assumed she probably would want a new team in place by the start of the new school year in July, rather than have to replace Morrow the following January. LaGrosa agreed and told Morrow that she would find him a position elsewhere in the district at his current salary until January.^[3]

Romer, as Superintendent of Schools for the LAUSD, had an official duty to communicate with the press about matters of public concern. More specifically, in the event of incidents of student violence, it was his official duty to let the general public know what the LAUSD [was] going to do about it. Following the violent episodes on the Jefferson campus in April and May 2005, Romer concluded Morrow had been unsuccessful in controlling the students, and because of the way he handled the student disturbances, [Morrow] had to be replaced at the end of the 2004-2005 school year. Romer understood that Morrow intended to retire, but he was aware of no plan to replace Morrow prior to the student disturbances. LaGrosa informed Romer that she had decided to replace Morrow at the end of the school year because of his handling of those disturbances. It was Romers opinion that Mr. Morrow had to be replaced in June because stronger leadership was needed at Jefferson right away.

In late May 2005, Romer agreed to an interview with a Los Angeles Times reporter because [he] considered the student disturbances at Jefferson to be of concern to the public and [he] knew that the public wanted to know what the District would do about it. Romer told the reporter that the high school needed stronger leadership, that Morrow would be replaced as principal, and that Morrows handling of the student disturbances had accelerated the decision to replace him. Romer also told the reporter that Morrows retirement plans did not fit with the Districts needsmeaning the district needed to replace Morrow at the end of the school year, prior to Morrows planned retirement date.

Plaintiffs Evidence^[4]

Michael OSullivan, Ed. D., president of the Associated Administrators of Los Angeles (AALA) and longtime school district employee, provided a declaration supporting Morrows opposition to defendants anti-SLAPP motion. OSullivans declaration was admitted as evidence from a percipient witness rather than as an expert witness. According to OSullivan, Morrow was an AALA member at the time of the Jefferson incidents and defendants decision to replace him as principal. The Collective Bargaining Agreement (CBA) in effect between AALA and LAUSD established the procedural due process rights of district administrators such as Morrow under article VII of that agreement, which was the exclusive mechanism for evaluating the performance of and disciplining of the certificated supervisory unit . . . for poor performance. At no time did any of the defendants invoke article VII as to Morrow. OSullivan was never contacted by any of the defendants about Morrows job performance. OSullivan understood that Morrow has an outstanding reputation in the LAUSD academic community with regard to his truthfulness and his job performance.

In Morrows own declaration, he stated that he was a member of AALA at all relevant times and that the AALA was the exclusive representative of certificated supervisors. The CBA established the exclusive procedure for taking personnel actions against members. Morrow considered his job performance and retirement plans to be highly personal and expected any questions concerning them to be addressed pursuant to article VII of the CBA. Morrow also summarized his employment history with the district, including his efforts to improve academic performance and security at Jeffersonand the ways in which defendants ignored or hindered many of those efforts. Morrow attributed the outbreak of student violence to defendants failure to heed his warnings and believed that defendants were unfairly placing the blame on him.

Concerning his retirement plans, Morrow explained that he had no desire to leave Jefferson. In December 2004, prior to the student disturbances, he began making retirement plans because his direct supervisor told him LaGrosa intended to replace him as principal. The fact that Morrow had not received a district performance evaluation that year was consistent with an intent to replace him. Morrow could not remember the persons he spoke to about retirement prior to the disturbances, but they did not include LaGrosa. He did not speak to her until May 31, 2005, when she was visiting the high school. She approached Morrow in front of the cafeteria and told him she was speaking to Romer on her cellular phone. The superintendent was being interviewed by a Los Angeles Times reporter. LaGrosa asked Morrow if he had told anyone he was planning to retire. Morrow said that he had spoken to his administrative team and direct supervisor in January, but only because he had heard that LaGrosa wanted to replace him. According to Morrow, in June 2005, Romer apologized to Morrow for making the statements to the press concerning Morrows job performance, stating that he got false information.

According to Morrow, defendants lacked any basis for transferring him from Jefferson. He declared that Romers statements and defendants actions compelled him to retire seven years earlier than he had originally planned. He also attributed loss of income and earning capacity to those statements and actions. He is currently employed, but receiving less compensation and fewer benefits.

The Newspaper Reports

The June 1, 2005 Los Angeles Times article began: The principal of Jefferson High School agreed Tuesday to step down amid criticism by city and school district officials over his handling of a spate of student brawls that many say have been fueled by racial tensions. [] Principal Norm Morrow will be replaced at the troubled South Los Angeles campus on July 1, six months before he planned to retire, said Rowena LaGrosa, the Los Angeles Unified School District local superintendent who met with Morrow on Tuesday to finalize the change. [] The move came on a day when Los Angeles Mayor-elect Antonio Villaraigosa[^[5]] and schools Supt. Roy Romer expressed concerns over Morrows ability to lead. The report explained that the Mayor-elect had visited the previous week, the day after police broke up a campus brawl involving more than 20 students. It was the third fight in the past six weeks at the school . . . . [] The events at Jefferson have unfolded amid other violent outbreaks on several campuses in the city and elsewhere in Southern California. While the fighting at many schools has occurred between [B]lacks and Latinos, district officials have cautioned that factors other than race, such as overcrowding, have also played a role in the violence. [] Romer also voiced the need for stronger leadership at Jefferson, saying in an interview that Morrow had retirement plans that did not fit with the districts needs. The principals handling of the recent violence had accelerated a decision to replace him, Romer said. According to the report, Morrow declined to comment Tuesday morning on his retirement plans and could not be reached after his meeting with LaGrosa.

On June 15, the Los Angeles Times reported that school district officials had hired a new principal, who would replace Morrow on July 1. The hiring comes two weeks after district Supt. Roy Romer announced that Morrow would be replaced at Jefferson six months before his retirement amid criticism over his handling of the outbreaks of violence on campus. Morrow will be transferred to another district position. [] Romer said in a recent interview that the principals management of the recent violence accelerated a decision to replace him. [] . . . [] The changes come after three melees, the first involving more than 100 students near the schools cafeteria. Three students were hurt. [] In the second, more than 100 [B]lack and Latino students fought in a brawl that officials said had links to a gang dispute. Six students were detained and two of them were arrested. Another suffered a broken hip. [] The third fight, involving about 20 students, occurred on the eve of a planned Day of Dialogue event that district officials had scheduled after the first two brawls.

The Trial Courts Ruling

The trial court found Government Code section 54957 did not proscribe Romer from discussing Morrows performance outside a closed school board hearing. The trial court also found neither Romer nor LaGrosa revealed any private information concerning Morrow. Alternatively, to the extent any private information was revealed, the disclosure was privileged. A principals leadership or lack thereof in handling student violence and melees on a campus is the subject of legitimate public concern. Romer, in his role as superintendent, had an official obligation to make a public report concerning the outbreak of violence at Jefferson. Pursuant to that official duty, Romer properly used a public forum to express his concern that Jefferson have a principal who could handle and eliminate the violence. There is no doubt that school violence is an issue of public concern, and discussion of such violence in a newspaper is a public forum and I think that the statements appear to have been . . . pretty circumspect under the circumstances.

DISCUSSION

THE TRIAL COURT PROPERLY GRANTED

DEFENDANTS SPECIAL MOTION TO STRIKE

Morrow argues his invasion of privacy and defamation claims were not subject to the anti-SLAPP statute because the statements by Romer and LaGrosa were not constitutionally protected, but even if they were, he made a sufficient factual showing of a probability of prevailing on those two claims to overcome defendants anti-SLAPP motion. We hold that none of the challenged statements divulged private information, but rather amounted to constitutionally privileged comment by a public officer in the proper discharge of an official duty under Civil Code section 47, subdivision (a). Accordingly, Morrows claims were subject to an anti-SLAPP motion. Moreover, the defamation claim independently failed because the challenged statements constituted either nonactionable opinions or nondefamatory statements of fact.

In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Under Code of Civil Procedure section 425.16 [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech . . . shall be subject to a special motion to strike. . . . (Code Civ. Proc., 425.16, subd. (b)(1).) (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) In order to establish a probability of prevailing on the claim (Code Civ. Proc., 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must state[] and substantiate[] a legally sufficient claim. [Citations.] Put another way, the plaintiff must 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 the plaintiff is credited. [Citations.] (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) [A] plaintiff opposing a [Code of Civil Procedure] section 425.16 motion must support its claims with admissible evidence. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1237.)

We independently review both the question of whether Morrows causes of action arise from protected activity and whether he has shown a probability of prevailing on the merits. (Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572, 1577; Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)

Protected Activity

The Code of Civil Procedure provides that for purposes of an anti-SLAPP motion, an act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes . . . any written or oral statement or writing made in . . . a public forum in connection with an issue of public interest . . . or 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. (Code Civ. Proc., 425.16, subd. (e).) Morrow argues the statements to the Los Angeles Times concerning his handling of the student violence, leadership abilities, and retirement plans did not concern an issue of public interest, but were private personnel details that could be divulged only within a formal personnel evaluation subject to the protections of the CBA. Like the trial court, we disagree.

Morrow concedesas he mustthat the incidents of student violence on the Jefferson campus were of public interest. These were very serious incidents. The Los Angeles Times published the following account: The first brawl involved about 100 students near the cafeteria. Three students were hurt. In the second, more than 100 [B]lack and Latino students got into another lunchtime fight that officials said had links to a gang dispute. Six students were detained and two of them were arrested. Another student suffered a broken hip. Prior to the June 1 and 15 reports, the Los Angeles Times had run at least seven articles on the outbreaks of violence at Jefferson, quoting Morrow in most of them as to his assessment of the incidents and plans to respond to them. The Los Angeles Times also reported that the police chief, mayor, and mayor-elect visited the campus in response to the incidents. The events undeniably were of at least citywide concern andnotwithstanding Morrows assertions to the contraryas Jeffersons principal, Morrow was at the center of the story. (See BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 757 [Without doubt, the public has a significant interest in the professional competence and conduct of a school district superintendent and high school principal]; Leventhal v. Vista Unified School Dist. (S.D. Cal. 1997) 973 F.Supp. 951, 958 [Debate over public issues, including the qualifications and performance of public officials (such as a school superintendent), lies at the heart of the First Amendment].)

Nevertheless, Morrow contends the challenged statements did not concern the student violence, but merely revealed matters of private interesthis retirement plans and the reasons for a personnel action. A fair reading of the relevant newspaper articles shows, however, Morrows assertion is untenable. While it is possible to imagine an instance in which a school administrators retirement plans would be of purely private interest, that was not the case here. To the contrary, Romer and LaGrosa only mentioned Morrows retirement plans to the extent they directly concerned the school districts solution to the student violence. There is no evidence that any gratuitous details were offered to the press and certainly none were published.

We find the analysis by the federal appeals court in Stevens v. Tillman (7th Cir. 1988) 855 F.2d 394 to be instructive. There, plaintiff Stevens, an elementary school principal, sued the president of a parent-teacher association and her supporters for a variety of claims including defamation. In the course of finding the principal was a public figure for purposes of the New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-286 standard, the Seventh Circuit explained: Stevens was not an elected public official, but as principal she possessed great discretion over the operation of Mollison School. How she used that discretion was the subject of legitimate public debate. . . . The statements at issue here dealt with the way Stevens ran Mollison School, not with her private life. (Stevens v. Tillman, supra, 855 F.2d at p. 403.) The same was true of Morrow.^[6]

Morrow erroneously claims the CBA proscribed Romer from making the challenged statements, except in a closed session of the board of education. As the CBA recognizes in article V, however, the district retains all rights not enumerated in the CBA or otherwise placed outside the CBAs scope by Government Code section 3543.2. That code section limits the CBAs scope of representation to matters relating to wages, hours of employment, and other terms and conditions of employment, and its definition of terms and conditions of employment does not encompass the right of the districts executive officers to make public comments on a represented administrators performance when it impacts on issues of public concern. (Gov. Code, 3543.2, subd. (a) [All matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating].) Moreover, the CBA identifies the right to assign personnel to any location as one of the rights retained by the school district. In short, the challenged statements were not the kind of formal personnel evaluation contemplated by article VII of the CBA. (Cf. Bellflower Education Assn. v. Bellflower Unified School Dist. (1991) 228 Cal.App.3d 805, 812 [the subject of the grievance, violation of bargained-for evaluation procedures, is within the allowable scope of collective bargaining under the Government Code].)

Morrow argues the personnel exception in the Brown Act created a right to privacy that covered the information provided to the press. The personnel exception, found in Government Code section 54957, authorizes a local legislative body to hold a closed session to consider personnel matters, which the statute defines as the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee. It also authorizes a local legislative body to hold a closed session to hear complaints or charges brought against a public employee by another person or employee, unless the employee requests a public session. Paragraph two of section 54957 sets forth the notice that a local legislative body must provide to the employee [a]s a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee[.] [] The purposes of the personnel exception are (1) to protect employees from public embarrassment and (2) to permit free and candid discussions of personnel matters by a local governmental body. This exception should be narrowly construed. (Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 96.)

The personnel exception is inapplicable, as stated above, because defendants statements were not the equivalent of a personnel evaluation under the CBA.^[7] In addition, Morrows argument turns the Brown Act on its head, because the general purpose of the Brown Act is to increase public awareness of issues bearing on the democratic process. The Brown Act requires open public meetings and gives people the right to attend meetings of local legislative bodies, subject to statutory exceptions. [Citation.] The Brown Act establishes the general rule that meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter. ([Gov. Code,] 54953, subd. (a).) The Brown Act has the objective of facilitating public participation in local government decisions and curbing misuse of the democratic process by secret legislation. (Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 95.)

The statutes plain meaning, as bolstered by the Brown Acts overarching purpose and the requirement that the personnel exception be read narrowly, forecloses an interpretation that would equate the kind of generalized criticism Roemer made to the press with a formal evaluation of performance as contemplated under Government Code section 54957. Stated another way, as a federal district court pointed out, while the Brown Act allows public employees to demand that a governing body air complaints about the employee in public, it does not grant the employees the right to force the conflict behind closed doors. (Leventhal v. Vista Unified School Dist., supra, 973 F.Supp. at p. 958.) Indeed, if the CBA or the Brown Act proscribed Romer from making the challenged statements to the press, there would be a serious question as to the constitutionality of either.^[8] (See id. at pp. 956-960 [school board bylaws imposing restrictions on raising complaints against school district employees at open board meetings, when applied to cover even informal criticism, violated the First Amendment, despite the contention that the publics expressive rights were outweighed by the school districts interest in protecting privacy and property rights of employees].)

Story continued as Part II .

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^[1] SLAPP is an acronym for strategic lawsuit against public participation. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) An order granting or denying a special motion to strike under Code of Civil Procedure section 425.16 is appealable. (Code Civ. Proc., 904.1, subd. (a)(13).)

^[2] Although Morrow alleged that LaGrosa and Romer both made false and disparaging statements to the public regarding him and his leadership abilities, the only statements he identifies are those attributed to Romer in the June 1 and 15 newspaper reports.

^[3] In his opposition declaration, Morrow denied that he and LaGrosa discussed finances during their very short conversation. He also denied telling LaGrosa that he understood she would want a new team in place before the start of the new school year. According to Morrow, LaGrosa began their conversation by telling him that she felt it would be best if a new team were in place since [Morrow] would only be able to remain with LAUSD until January 2006.

^[4] We discuss only the statements deemed admissible by the trial court. As discussed infra, we find the trial courts evidentiary rulings entirely proper.

^[5] The mayor was quoted as saying that he had the sense that things were out of control, and I do not get the sense that anyone was in charge. The mayor is not a defendant in this lawsuit.

^[6] Morrow mistakenly attempts to rely on the holding in Garcetti v. Ceballos (2006) ___ U.S. ___ [126 S.Ct. 1951] that when public employees make statements pursuant to an official duty, they are not speaking as citizens for First Amendment purposes. The decision in Garcetti, however, did not deal with a government officials public comments on official matters, but rather the question of the extent to which a public employer may discipline a public employee for making statements in the course of the employees official duties.

^[7] We also note that to the extent Morrow argues the district violated article IX of the CBA through it handling of his transfer, paragraph 1.9 of that provision states that such administrative staffing procedures are not subject to the grievance/arbitration process.

^[8] Morrows attempt to rely on the California Public Records Act as a basis for supporting his claimed privacy invasion does not merit extensive discussion, as Morrow does not allege or present evidence that defendants disclosed confidential information from his personnel files.