Opinion
F073851
04-02-2018
ALFONSO PADRON, Plaintiff and Appellant, v. STEPHANIE MORENO et al., Defendants and Respondents.
Alfonso Padron, in pro. per., for Plaintiff and Appellant. Jacobson, Hansen & McQuillan, Steven M. McQuillan and Leith B. Hansen for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CECG03521)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge. Alfonso Padron, in pro. per., for Plaintiff and Appellant. Jacobson, Hansen & McQuillan, Steven M. McQuillan and Leith B. Hansen for Defendants and Respondents.
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At a meeting of the Board of Trustees of the Parlier Unified School District (Board) in which special education issues were being considered, plaintiff Alfonso Padron disclosed during the time for public comment that one of the Board members, defendant Stephanie Moreno, has a young child with a disability. Moreno felt that her child's privacy had been unfairly invaded by plaintiff, and at a subsequent Board meeting she responded by criticizing plaintiff's public disclosure of her child's disability. She reiterated her criticisms of plaintiff in a Facebook post. The superintendent, defendant Edward Lucero, replied to Moreno's Facebook post by opining that plaintiff had behaved like a bully. Plaintiff's reaction was to file the present lawsuit against Moreno, Lucero and Board member Edgar Pelayo (together, defendants), alleging defamation, intentional infliction of emotional distress, and violations of statute.
In the present appeal from a judgment of dismissal, plaintiff challenges two distinct rulings by the trial court. The first is the trial court's order granting defendants' motion to set aside default pursuant to attorney affidavit(s) of fault. The second is the trial court's decision to grant defendants' special motion to strike plaintiff's complaint under Code of Civil Procedure section 425.16 (or the anti-SLAPP statute). We agree with defendants that both motions were correctly granted by the trial court, and no error or abuse of discretion has been shown. Accordingly, we affirm the orders and judgment of the trial court.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
FACTS AND PROCEDURAL HISTORY
At all relevant times, defendant Moreno was a member of the Board, as was defendant Edgar Pelayo. Defendant Edward Lucero was the Superintendent of the Parlier Unified School District. All three were present at the subject Board meetings on September 22, 2015, and October 27, 2015.
Public Remarks at Issue
At a meeting of the Board on September 22, 2015, during the time provided for public comment, plaintiff spoke to oppose the Board's proposal to fill a special education position with an individual who had obtained a waiver from certain special education certification requirements. During his speech to the Board, as described in plaintiff's complaint, "Plaintiff commented that students with disabilities were a protected population and that Defendant Moreno was well aware since it was Plaintiff's understanding that Defendant Moreno had a child with a disability." At that time, Moreno had not made it known to the public that she had an autistic son.
At subsequent meetings of the Board, including the October 27, 2015, meeting, special education staffing concerns remained an ongoing issue before the Board. At the October 27, 2015, meeting, Moreno responded to the comments made by plaintiff about her child. According to Moreno, her goal in doing so was "to encourage the Parlier Unified School District community to respect the privacy of children and families affected by Autism as the Board addresses special education issues." The statement she made at that Board meeting was as follows:
"Did you know that 1 in 68 births in the US result in a child being diagnosed with Autism? At the meeting on 9/22/15 a comment was made about me having a son with special needs. I want to be clear to say that I have no issue with being questioned about my decisions as a board member. However[,] I feel it was a VIOLATION of both my son and my family's rights to PRIVACY and CONFIDENTIALITY. Lastly, I would like to say I find it DISGUSTING that a grown man would feel the need to rob an innocent three-year-old child of his rights and go so far as to take a public forum and announce that he has a disability!! I would suggest that people be careful in the comments they make because let me remind you like I said previously 1 in 68 children are born with autism so you never know if and when it may appear in your family. Because of the actions of this individual I had people calling, texting, and approaching me inquiring about my son[']s disability. With him barely having been diagnosed in May we were not as a family yet comfortable telling everyone about his disability. I am proud to have a son with Autism and NO ONE can take
that away from me, I will continue to ADVOCATE both for my son and the children of Parlier!"
Shortly thereafter, Moreno posted on Facebook a verbatim transcript of the statement she made at the Board meeting, entitling the Facebook post as "feeling proud of my Autistic son," which included the following additional commentary:
"At the Board meeting held on 9/22/15 a comment was made about my having a son with special needs. ALFONSO PADRON was upset about an agenda item that dealt with hiring a speech language pathologist, but instead of attacking the issue he chose to target me personally. Although he stands at the podium and states 'it's not personal' I don't know any way it couldn't be when he clearly turned to address me and said 'Mrs. Moreno should know she has a son with special needs.' Needless to say I was devastated! Below is the speech I gave at this Tuesday's board meeting to defend my son. I fully understood that being in public office I would be challenged on the decisions I made (as an adult) but never did I feel someone would stoop SO LOW and target my innocent child."
District Superintendent Lucero responded on Facebook to Moreno's post by referring to plaintiff as a "Bully." Board Member Pelayo was alleged by plaintiff to have condoned or facilitated Moreno's speech at the Board meeting.
Plaintiff's Complaint and Defendants' Default
Plaintiff filed his complaint on November 17, 2015, naming Moreno, Lucero and Pelayo as defendants. Plaintiff's complaint sought damages against defendants under causes of action for defamation, intentional infliction of emotional distress, and violation of Civil Code sections 52.1 and 51.7 (referred to in plaintiff's complaint as the Bane Act and the Ralph Civil Rights Act).
Civil Code sections 52.1 and 51.7 provide remedies when basic civil rights are interfered with by acts of violence, threats of violence, or like conduct. Defendants' declarations in their anti-SLAPP motion affirmed that they did not threaten plaintiff with violence, nor did they condone or in any way incite violence or intimidation.
Plaintiff personally served the complaint and summons on all three defendants on November 17, 2015, at a Board meeting. The complaint and summonses were forwarded by Lucero (on his own behalf and on behalf of Moreno and Pelayo) to attorney Benjamin Rosenbaum of the law firm Lozano Smith, which served as general counsel for Parlier Unified School District. Lucero believed that Rosenbaum would take the necessary steps to ensure that a responsive pleading was filed on behalf of defendants. However, Attorney Rosenbaum failed to do so, and he mistakenly assumed that Lucero was going to tender the matter to Erik Knak, a claims handler, for assignment to other defense counsel. On December 17, 2015, the day the responsive pleading was due, Attorney Rosenbaum spoke with Knak, and Knak learned that Rosenbaum had not filed an answer. Knak then contacted attorney Leith B. Hansen to file a responsive pleading on behalf of defendants. According to Mr. Hansen's declaration, he did not realize that a responsive pleading was due that same day until it was too late. Hansen prepared and attempted to file an answer on the following day, December 18, 2015. The clerk of the superior court initially accepted the answer for filing, but later rejected it and returned it to Hansen's office unfiled because plaintiff had requested and obtained entry of default against defendants earlier in the day.
Motion to Set Aside Default
On January 19, 2016, defendants filed their motion to set aside default. In their motion, defendants argued that relief from default was mandatory under section 473, subdivision (b), because defendants had submitted declarations or affidavits of fault from attorneys Rosenbaum and Hansen. Alternatively, defendants asserted that they were entitled to discretionary relief under the same code section on the ground of mistake or excusable neglect on the part of defendants. On January 25, 2016, plaintiff filed his opposition to the motion. Plaintiff's opposition argued that mandatory relief was not available, and that discretionary relief should not be granted because the mistake or neglect was allegedly inexcusable.
The trial court granted the motion to set aside default under the mandatory provisions of section 473, subdivision (b), based on the attorney affidavits of fault filed by Attorneys Rosenbaum and Hansen. Thereafter, with the default set aside, defendants proceeded to file their answer on March 10, 2016.
Defendants' Anti-SLAPP Motion
On March 10, 2016, defendants also filed their motion to strike plaintiff's complaint pursuant to section 425.16, the anti-SLAPP statute. The motion argued that plaintiff's complaint, and the causes of action set forth therein, arose out of defendants' acts in furtherance of their right of free speech in connection with a public issue. Additionally, defendants' motion asserted that plaintiff could not establish a probability of prevailing on any of the causes of action set forth in the complaint, since (a) all causes of action were barred by the absolute privilege set forth in Civil Code section 47; (b) there was no outrageous conduct for purposes of an intentional infliction of emotional distress claim; (c) there was no falsity for purposes of defamation; and (d) there was no violence or threat of violence for purposes of the statutory claims.
Plaintiff filed opposition to the motion on April 21, 2016. In his opposition, plaintiff primarily argued that the anti-SLAPP statute was not intended to reach cases such as this one.
On April 28, 2016, the tentative ruling became the order of the trial court. In its order, the trial court granted defendants' special motion to strike plaintiff's entire complaint, without leave to amend. The trial court found that defendants met their burden of showing that the allegedly defamatory statements were protected under the anti-SLAPP statute, and thus the burden shifted to plaintiff to prove by admissible evidence that he has a probability of prevailing on his claims. In explaining its ruling that defendants met their burden of showing protected speech or conduct, the trial court found that the statements at issue were made either during, or in connection with, an official proceeding—i.e., a school board meeting. Further, the statements related to special education, an issue that was before the Board when Moreno made her comments criticizing plaintiff. As to the Facebook statements, the trial court found that such statements came within the same category of protected speech, and further, they were additionally protected as statements made in a public forum concerning an issue of public interest—i.e., the treatment of autistic and disabled children and their families.
Since the subject statements were protected by the anti-SLAPP statute, the trial court held the burden shifted to plaintiff to show a probability of prevailing on his claims, but plaintiff failed to meet that burden. Among other things, the trial court held that plaintiff had no probability of prevailing because the absolute privilege of Civil Code section 47 applied to the causes of action. Moreover, plaintiff failed to show any outrageous conduct for purposes of the intentional infliction of emotional distress cause of action, failed to show a provably false statement for purposes of defamation (i.e., opinions cannot support a defamation claim), and plaintiff presented no basis to support the alleged violations of Civil Code sections 52.1 and 51.7, as there was no indication of violence or threats of violence.
On May 10, 2016, based upon its order granting defendants' special motion to strike plaintiff's complaint without leave to amend, a judgment of dismissal was entered by the trial court in favor of defendants. Plaintiff timely appealed from that judgment.
DISCUSSION
A challenged order or judgment of the trial court is presumed to be correct on appeal, and it is the burden of the appellant to affirmatively demonstrate the existence of a reversible error or a clear abuse of discretion. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham); Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.) As noted, plaintiff's appeal challenges two distinct decisions of the trial court: (1) the order granting defendants' motion to set aside defaults, and (2) the order granting defendants' anti-SLAPP motion. We separately consider both orders, and plaintiff's assertions of error, below.
I. Order Setting Aside Default
A. Section 473 and Standard of Review
A motion for relief from a judgment, order or other proceeding may be made on the ground that it was taken against the moving party as a result of mistake, inadvertence, surprise or excusable neglect. (§ 473, subd. (b).) Whether to grant "such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (Elston).) The discretionary relief provided under section 473(b) is applied liberally where the party moves promptly to seek relief and no prejudice will be suffered by the party opposing the motion if relief is granted. In such instances, only very slight evidence is needed to justify relief. (Elston, at p. 233; Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 819) Additionally, because the law favors trial on the merits, doubts are to be resolved in favor of the party seeking relief. (Elston, at p. 233.) In the absence of a "clear showing" of abuse of discretion, the trial court's order granting relief under section 473 may not be disturbed on appeal. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Id. at pp. 478-479.)
In addition to the discretionary relief provision of section 473, the same statute provides for mandatory relief from default in certain circumstances. It declares, "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default entered by the clerk against his or her client . . . unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise or neglect." (§ 473, subd. (b).) A motion based on an attorney affidavit of fault need not show diligence in seeking relief or that the attorney's error was reasonably excusable. (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1144 [motion timely if filed within six months]; Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 [applicable to inexcusable neglect]; Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-440 (Martin Potts) [neglect need not be excusable].)
There is a split of authority whether the client's partial fault contributing to the occurrence of the default precludes relief under the mandatory provision of section 473, subdivision (b). (See Martin Potts, supra, 244 Cal.App.4th at p. 442 [describing split of authority]; Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 727-728 [same].) In Lang v. Hochman (2000) 77 Cal.App.4th 1225, it was stated that "[A] party can rely on the mandatory provision of section 473 only if the party is totally innocent of any wrongdoing and the attorney was the sole cause of the default or dismissal." (Id. at p. 1248.) However, other appellate cases have adopted a contrary interpretation, holding that " 'the statute merely requires that the attorney's conduct be a cause in fact of entry of default (see § 473, subd. (b)), but does not indicate that it must be the only cause.' " (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 519; see Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 928-932 (Benedict) ["Inasmuch as respondents' counsel submitted declarations indicating ways in which counsel's mistake or neglect caused the entry of default, the trial court properly granted the requested relief, even though [the client's] mistakes were an additional cause in fact of the entry of default"].) Under these cases, it is considered sufficient if the lawyer's neglect or fault was in fact a proximate cause of the default. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867-868 (Milton); see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 5:295.5, p. 5-81.) We need not resolve this conflict here because, as explained below, the trial court found the attorneys' neglect was the cause of the default, not the clients' own conduct, and substantial evidence supported the trial court's finding.
In reviewing a grant of relief under the mandatory provisions of section 473, subdivision (b), we affirm the trial court's finding that the requirements for mandatory relief have been met if it is supported by substantial evidence. (Martin Potts, supra, 244 Cal.App.4th at p. 437; Benedict, supra, 87 Cal.App.4th at p. 928.) B. Default Properly Set Aside
Here, there is no dispute that the motion was brought within six months after the default was taken and was accompanied by affidavits of fault by defendants' attorneys, Hansen and Rosenbaum. The motion was in proper form, and included a proposed answer of defendants. Hansen and Rosenbaum described in their declarations the nature of their respective mistake or neglect, and explained that it was due to such mistake or neglect that defendants' answer was not timely filed, which allowed their default to be taken. The trial court found these attorney declarations met the statutory requirements for granting mandatory relief. Further, the trial court explained that defendants themselves were not to blame for the default: "[D]efendants were entitled to rely on their attorney to defend them once they notified the attorney of the pending complaint, which they did promptly after being served." Further, the trial court found "[t]here is nothing to indicate that defendants failed to take diligent action to avoid being defaulted, or that they deliberately allowed the default to be entered. In fact, after they were served, they immediately gave the complaint to the [School] District's attorney to have him file an answer and take their defense, which was all they were required to do under the circumstances." The trial court concluded that since the attorneys provided the necessary affidavits of fault, "relief is mandatory."
As outlined above, the trial court's findings were amply supported by substantial evidence in the record. The findings were supported by the attorneys' declarations attesting to their own fault or neglect as the cause of default, and were further corroborated by declarations of Lucero, Pelayo and Knak. Accordingly, the trial court correctly granted mandatory relief under section 473, subdivision (b). In the present appeal, plaintiff merely disagrees with the trial court's interpretation of the evidence, attempting thereby to reargue its motion by pinning responsibility for the default on defendants themselves. That will not do. "A trial court's finding on the causation issue will be affirmed so long as it is supported by substantial evidence. [Citation.] If the evidence gives rise to conflicting inferences, one of which supports the trial court's findings, we must affirm." (Milton, supra, 53 Cal.App.4th at p. 867.) Since substantial evidence supported the trial court's ruling to set aside default based on the attorney affidavits of fault, including the trial court's finding that the attorneys' neglect was responsible for the default, that ends the matter.
In sum, plaintiff has failed to meet his burden as the appellant of demonstrating reversible error or abuse of discretion on the part of the trial court. Moreover, substantial evidence plainly supports the trial court's finding that the requirements for mandatory relief were satisfied. We conclude that the trial court correctly set aside defendants' default under the mandatory provisions of section 473, subdivision (b).
Even assuming for the sake of argument that mandatory relief was unavailable, discretionary relief would certainly have been granted under the facts of this case. (Elston, supra, 38 Cal.3d at p. 233 [where motion promptly filed, very slight evidence needed to justify discretionary relief, since trial on the merits is favored].) Either way, setting aside the defaults was clearly appropriate. --------
II. Order Granting the Anti-SLAPP Motion to Strike
We next turn our attention to the trial court's order granting defendants' special motion to strike under section 425.16—i.e., the anti-SLAPP motion. In granting defendants' anti-SLAPP motion, the trial court struck plaintiff's entire complaint, without leave to amend, and thereafter entered judgment in favor of defendants. As will be seen, the trial court correctly granted the motion in this case. A. Standard of Review
We review de novo the trial court's ruling to grant or deny an anti-SLAPP motion. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) "Resolving the merits of a section 425.16 motion involves a two-part analysis, concentrating initially on whether the challenged cause of action arises from protected activity within the meaning of the statute and, if it does, proceeding secondly to whether the plaintiff can establish a probability of prevailing on the merits." (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) In our review, " '[w]e consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by plaintiff as a matter of law." ' " (Flatley, at p. 326.) B. Overview of Anti-SLAPP Statute
Section 425.16, subdivision (b)(1), provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." An act in furtherance of a person's right of petition or free speech is broadly defined by section 425.16, subdivision (e), to include the following: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other proceeding authorized by law, (3) any 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, or (4) 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."
"[T]he Legislature enacted section 425.16, the anti-SLAPP statute, to provide for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315.) "The Legislature authorized the filing of a special motion to strike such claims (§ 425.16, subds. (b)(1), (f)), and expressly provided that section 425.16 should 'be construed broadly.' " (Ibid.; see § 425.16, subd. (a)) As noted, the resolution of an anti-SLAPP motion follows a two-step process: "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . [Second, if] the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) " 'The defendant has the burden on the first issue . . . ; the plaintiff has the burden on the second issue.' " (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)
To satisfy the first step or prong, the moving defendant must show the cause of action arises from acts that come within one of the categories of section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati).) If the defendant does not meet this threshold burden at the first step, the court denies the motion without addressing the second step. If the defendant makes the required showing, the burden shifts to the plaintiff to satisfy the second step of the anti-SLAPP analysis. (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 266-267.) To satisfy the second step or prong, a plaintiff must state and substantiate a legally sufficient claim. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) " '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." ' " (Ibid.) "In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should 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.) C. Anti-SLAPP Motion Properly Granted
Preliminarily, we briefly address arguments raised by plaintiff regarding the applicability of the anti-SLAPP statute to this case. Plaintiff contends that the anti-SLAPP statute was inapplicable because defendants failed to establish plaintiff's lawsuit was brought for the purpose of chilling the exercise of rights of free speech or petition. Plaintiff's argument is misplaced because the Supreme Court has explicitly held there is no requirement that the moving party prove an "intent to chill." (Equilon, supra, 29 Cal.4th at pp. 59-67). "[T]he anti-SLAPP statute, construed in accordance with its plain language, incorporates no intent-to-chill pleading or proof requirement. [Citation.] Consequently, a defendant who meets its burden under the statute of demonstrating that a targeted cause of action is one 'arising from' protected activity [citation] faces no additional requirement of proving the plaintiff's subjective intent." (City of Cotati, supra, 29 Cal.4th at p. 74.) For the same reasons, there is no requirement of proving the lawsuit actually had a chilling effect. (Id., at p. 75.) Moreover, the cases relied on by plaintiff for the proposition that an intent to chill must be proven by the moving party were expressly disapproved by the California Supreme Court on that issue. (See Equilon, supra, 29 Cal.4th at p. 68, fn. 5 [disapproving, to the extent they reached a contrary holding on this issue, several cases including Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 & Wilcox v. Superior Court (1994) 27 Cal.App.4th 809].)
Another erroneous assertion by plaintiff is that the anti-SLAPP statute is inapplicable because he is an individual, not a large corporation. However, section 425.16 makes no such distinction, and our courts have specifically applied the statute to individuals. (See, e.g., Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 (Briggs) [applying § 425.16 to individual plaintiffs].) Further, plaintiff's proposal to artificially limit the scope of the statute (i.e., to large corporations) is inconsistent with the legislative intent to interpret its protective provisions "broadly." (§ 425.16, subd. (a) [statute "shall be construed broadly" to effectuate protective purposes]; see Briggs, at p. 1120 [discussing requirement of broad construction].) We therefore flatly reject plaintiff's unsupported suggestion that the statute only applies to big corporations.
We next consider whether the motion was properly granted, beginning with the question of whether defendants met their burden as the moving parties. Preliminarily, we observe that all of the causes of action are directly based upon and arise out of the statement made by Moreno at the October 27 Board meeting, her subsequent post on Facebook reiterating her statement and adding further criticism of plaintiff, and Lucero's response to the Facebook post. Pelayo is not alleged to have made any offensive comments, but is sued for merely allowing or facilitating Moreno's statement at the October 27 Board meeting.
In order to satisfy the first step or prong, the moving defendants had to show the cause(s) of action arose from speech or conduct that falls within one of the categories of protected activity set forth in section 425.16, subdivision (e). (City of Cotati, supra, 29 Cal.4th at p. 78.) Under that subdivision, statements made "before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law" are expressly within the protection of the statute (§ 425.16, subd. (e)(1), italics added), as are statements made "in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law" (id., subd. (e)(2), italics added). Since school board meetings are public governmental proceedings authorized by statute (see Ed. Code, § 35140), such meetings plainly qualify as "official proceeding[s] authorized by law" for purposes of the section 425.16, subdivision (e)(1) and (e)(2). (Briggs ,supra, 19 Cal.4th at pp. 1113-1114.) Moreover, under the clear and bright-line test of subdivision (e)(1) and (e)(2), statements made either "before" official proceedings or "in connection with issues under consideration" by official proceedings, are per se within the protections of section 425.16 without any need to prove that the issue was one of public interest or significance. (Briggs, at pp. 1116-1122.)
Having set the stage for our analysis, we next review the comments at issue, to determine if they were protected under section 425.16. Here, the complaint clearly admits that the initial criticism of plaintiff by Moreno was made in the course of a public Board meeting of the Parlier Unified School District, responding to something plaintiff had said at an earlier public meeting of the Board, on the subject of special education. Further, as demonstrated by the declaration of Moreno, the statements made by her (at the October 27 Board meeting) criticizing plaintiff were in connection with issues before the Board relating to special education staffing matters, which were ongoing issues under consideration by the Board. Therefore, Moreno's statement before the Board was clearly protected under both subdivision (e)(1) and (e)(2) of the anti-SLAPP statute.
Moreno's and Lucero's subsequent comments on Facebook also came within the scope of subdivision (e)(2) of section 425.16, since they were made in connection with an issue under consideration in an official proceeding. In applying this subdivision, "[t]he fact that the communication was made to other private citizens rather than to the official agency does not exclude it from the shelter of the anti-SLAPP suit statute." (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.) As the trial court correctly observed: "Moreno's Facebook comment recited verbatim her statement before the Board on October 27th, and then added further comments about her feelings regarding having her son's disability exposed in public. . . . Lucero then made his comments about plaintiff being a 'bully.'. . . These comments were all made in connection with the issue under consideration by the Board, namely the question of whether waivers should be granted to people working in special education in the District. . . . Thus, the statements fall within section 425.16, subd[ivision] (e)(2)." We agree. The posted criticisms related to the issue of special education, including the nature of plaintiff's remarks on that issue and the manner in which such issue should be (or should have been) discussed in a public setting. Further, as confirmed by the declarations of Moreno and Pelayo, during the relevant timeframe of the events alleged in plaintiff's complaint, special education staffing issues remained under consideration by the Board.
Additionally, the Facebook statements were also protected under subdivision (e)(3) of section 425.16, which gives anti-SLAPP protection to statements "made in a place open to the public or a public forum in connection with an issue of public interest." As the trial court correctly acknowledged, it is well established that an Internet Web site accessible to the public (such as Facebook) is a " 'public forum' " or a " 'place open to the public' " within the meaning of section 425.16, subdivision (e)(3). (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199 [approving trial court's observation that it "cannot be disputed that Facebook's website" is a public forum for purposes of anti-SLAPP law]; Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146 ["The Internet is a classic public forum which permits an exchange of views in public"]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366 ["It is settled that 'Web sites accessible to the public . . . are "public forums" for purposes of the anti-SLAPP statute' "].)
Furthermore, we have no difficulty in concluding the issue was one of public interest for purposes of subdivision (e)(3) of section 425.16. (See Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, 674 [scope of term " 'public interest' " construed broadly]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [" 'public interest' " defined broadly in § 425.16 to include "not only governmental matters, but also private conduct that impacts a broad segment of society"].) Here, not only are the special education needs of autistic and disabled persons a matter of public interest, but so is the closely related concern expressed by both Moreno and Lucero about the manner of conducting such public discussions and debates, which appears to be at the heart of their sharp criticisms of plaintiff. As Lucero stated in his declaration in support of the motion: "In my opinion, invasions of privacy such as [plaintiff's] comment should not be a part of the public discussion of the Parlier Unified School District's special education program. It was my opinion that [plaintiff's] comments at the Board meeting were a form of bullying, and I conveyed that opinion in a response to Ms. [Moreno's] Facebook post." Similarly, Moreno's comments at the Board meeting and on Facebook were not merely a personal reaction to plaintiff's reference to her child, but clearly involved the broader concern that "people be careful in the comments they make because . . . 1 in 68 children are born with autism so you never know if and when it may appear in your family." She explained in her declaration in support of the motion that her purpose in speaking up "was to encourage the Parlier Unified School District community, including [plaintiff], to respect the privacy and confidentiality of special education students in public discussions of special education issues facing the District." It is clear that the statements were made in connection with an issue (or issues) of public interest, and not merely a private or personal concern. We conclude that the Facebook posts by Moreno and Lucero were protected under both subdivision (e)(2) and (e)(3) of section 425.16.
Based on the foregoing, it is clear that defendants met their burden under the anti-SLAPP statute of showing the causes of action in the complaint were based on, and arose out of, speech or conduct protected under the anti-SLAPP statute. Therefore, the burden shifted to plaintiff to "demonstrate that the complaint is legally sufficient and supported by a prima facie showing of facts to support a favorable judgment if the evidence submitted by the plaintiff is accepted." (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 469.) To meet that burden, plaintiff had to show both legally sufficient claims and the existence of "admissible evidence that, if credited, would be sufficient to sustain a favorable judgment." (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.)
The trial court, in its order granting the motion, correctly explained in extensive detail why plaintiff had failed to meet his burden of showing a probability of prevailing on his claims. Indeed, the trial court's order discussed why, under the evidentiary showing and relevant law, plaintiff could not prevail on any of his causes of action. Among other things, the applicability of the absolute privilege under Civil Code section 47, the lack of "outrageous" conduct to establish intentional infliction of emotional distress, the absence of any provably false assertion or reckless disregard for the truth for purposes of defamation, and the absence of evidence that defendants committed violence or intended to incite violence for purposes of the statutory causes of action, were all cogently presented by the trial court in its order, with ample citations to the evidence before it and applicable legal authorities. It is unnecessary to rehash that analysis here, because, as explained below, we hold that plaintiff's failure in the instant appeal to present any argument or provide citations to an adequate record concerning the trial court's determination on the second prong of the motion results in a forfeiture or abandonment of that issue.
Because a trial court's order is presumed correct on appeal, error must be affirmatively shown by an appellant. (Denham, supra, 2 Cal.3d at p. 564.) In his appeal, plaintiff does not present any argument or refer to any evidence in the record regarding the second prong. Nothing is presented to this court, legally or factually, to challenge the trial court's determination that plaintiff failed to establish a probability of prevailing on his claims. (§ 425.16, subd. (b)(1).) Plaintiff's appeal makes one stray perfunctory reference to the existence of "declarations of witnesses," but no such declarations are contained in the record on appeal, and no legal argument is provided as to the possible significance of the purported declarations. Consequently, plaintiff has forfeited or abandoned any challenge to the trial court's determination that plaintiff failed to meet his burden of showing a likelihood of prevailing on his claims. " 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) Appellate courts will treat an appellant's "failure to raise an issue in his or her opening brief as a waiver of that challenge." (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.) "When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned." (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699; see People v. Stanley (1995) 10 Cal.4th 764, 793.) "Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]." (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) These principles of forfeiture or abandonment of issues on appeal clearly apply here to plaintiff's complete failure to address or raise any issue or argument with respect to the trial court's ruling on the second prong.
In conclusion, defendants met their burden as moving parties of showing the causes of action arose from protected speech, and plaintiff failed to meet his burden of establishing a probability of prevailing and waived on appeal any challenge to the trial court's ruling on the second prong. Moreover, plaintiff has failed to articulate, much less to demonstrate, any reversible error or abuse of the trial court's discretion. For these reasons, we uphold the trial court's order granting the special motion to strike under section 425.16.
DISPOSITION
The orders and judgment are affirmed. Defendants are entitled to recover their costs on appeal.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
DETJEN, J.