Tuesday, June 12, 2018
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Court of Appeal:
Amending Complaint Does Not Render Moot Appeal From Denial of Anti-SLAPP Motion
By a MetNews Staff Writer
The Fourth District Court of Appeal declared yesterday that an appeal from the denial of an anti-SLAPP motion is not rendered moot where the plaintiff has filed an amended complaint.
The opinion for Div. Two by Justice Douglas P. Miller comes in a case in which defendant Suzette Davis, who while superintendent of a school district obtained a confidential medical report about a member of the district’s governing board, Dawn D. Turnbull, and gave it to a volunteer for the district who posted information from it on social media.
Turnbull was a teacher for the Oro Grande School District. Residing within the boundaries of the Lucerne Valley Unified School District, she served on its board.
The report excused Turnbull from work. The superintendent of the district where she was employed gave it to Davis, and the volunteer posted the message that Turnbull “‘was about to get fired but went out on stress leave instead.”
Turnbull, who was later fired from her teaching position and ousted from the board, sued the Oro Grande School District, its superintendent, and Davis. Davis, who has left her post as superintendent, appealed the denial of her anti-SLAPP motion as to a cause of action against her for invasion of privacy.
Dismissal Not Warranted
Though the opinion, which was not certified for publication, affirms the ruling in Turnbull’s favor, it rejects her contention that the appeal should be dismissed. Miller wrote:
“If Turnbull’s argument were accepted, it would undermine the anti-SLAPP statute. A plaintiff who erroneously obtained a favorable ruling on an anti-SLAPP motion could avoid appeal by amending her complaint. The amended complaint would trigger a second anti-SLAPP motion, and possibly a second erroneous ruling. The cycle could continue. By the time the defendant successfully reached an appellate court, the plaintiff would have succeeded in its goals of delaying the defendant, distracting the defendant, and depleting the defendant’s energy and resources. Such a procedure would frustrate the Legislature’s objective of providing quick relief in SLAPP suits….Accordingly, we reject Turnbull’s argument.”
On the merits, the appeals panel found that Davis did not satisfy the first prong of the anti-SLAPP statute: showing that the conduct in question arose from the right of public speech or petition in connection with a matter of public interest.
No Communication
“The act of receiving a note is not a statement or writing made by Davis,” Miller pointed out. “Because Davis did not make a written or oral statement, Davis’s alleged act is not protected as a written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”
The posting of information about Turnbull was done by the volunteer, the jurist noted, and there was “no direct communication by Davis.”
Davis insisted that Turnbull, as a board member, was a public figure and there was public interest in the matter of her non-attendance at board meetings. Miller said that what Davis did not explain was how Turnbull’s employment in a different school district was “a matter of public concern.”
The case is Turnbull v. Davis, E067362.
On her Facebook page, Turnbull indicates that from July 1, 2011 to the present, she has been a data analyst for the Oro Grande School District. Although she is suing the district, she writes:
“I work for the best school district in the high desert, with the best staff, teachers and administrators.”
She alleges that Lucerne Valley Unified School District “is trying their best to defame everything good because of a personal vendetta.”
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