Duchan v. LA Unified Sch. Dist.

Filed 1/31/18 Duchan v. Los Angeles Unified School District CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JASON CHRISTOPHER DUCHAN,
Plaintiff and Appellant,
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
B279524
(Los Angeles County
Super. Ct. No. BC591524)
APPEAL from an order of the Superior Court of
Los Angeles County. Deirdre Hill, Judge. Affirmed.
Hadsell Stormer & Renik, Dan Stormer and Caitlan
McLoon; Toni J. Jaramilla, May Mallari, and Francis Agcaoili for
Plaintiff and Appellant.
Charlie L. Hill and Alexander Molina for Defendant and
Respondent.

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Appellant Jason Christopher Duchan (appellant) appeals
from an order dismissing two of his claims, and portions of his
remaining claims, against Los Angeles Unified School District
(LAUSD), pursuant to Code of Civil Procedure section 425.16,
subd. (a) (“section 425.16” or “anti-SLAPP statute”).1 We find no
error in the trial court’s ruling, and therefore affirm the order.
FACTUAL BACKGROUND
The underlying incidents
Appellant is an art teacher who started working for
LAUSD in 2007. In the spring of 2013, when appellant was
working at East Virgil Middle School, he disciplined a student for
drawing a penis on a desk. In retaliation for the discipline, the
student created a false Facebook profile for appellant which
displayed appellant’s name and photograph. Appellant had no
idea of the existence of the Facebook profile. The Facebook page
contained the following lewd and sexually explicit posts: “Ahh,
my nipples hurt, my nipple senses must be activated, there is
trouble in the art universe”; “Apparently the suspects for the
tagging of the penis, to which I masturbated to, weren’t guilty
after all”; and, “Today in class I was really disgusted see that
someone tagged a penis on one of my tables.”
In the fall of 2014, appellant became a ninth-grade teacher
at John H. Francis Polytechnic Senior High School (Polytechnic).
The ninth grade classes are located in an area known as the
Freshman Center.
In November 2014, a ninth-grade student at Polytechnic
named Alex C. discovered the fake Facebook profile for appellant
and shared it with other students and a teacher at the Freshman
Center. The teacher, James Deschenes, taught English as a
1 “SLAPP is an acronym for ‘strategic lawsuit against public
participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31
Cal.4th 728, 732, fn. 1.)

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Second Language, and noted that the students in this particular
class were difficult to manage. The students were “riled up”
about the discovery of the Facebook page. Alex C. rushed into the
classroom, shouting “‘I just found out my teacher is gay!’” One
girl stated, “‘everybody knows about this already.’” The students
began making threatening comments about appellant’s sexuality.
Alex C. said something along the lines of, “‘If that guy messes
with me, I wouldn’t have any problem fucking him up.’”
Deschenes was concerned about both appellant and the students,
who had the tendency to “be really disruptive and make trouble.”
Deschenes immediately contacted the Vice Principal, Lourdes De
Santiago, and informed her of the events of that day. De
Santiago alerted the principal, Ari Bennett, the same day.
Bennett reviewed the Facebook profile and informed
LAUSD administrators about the incident on the afternoon of
November 5, 2014. On the same day, Bennett and De Santiago
were informed of another recent incident involving appellant. A
student, Jose C., asked to see a counselor and De Santiago
regarding an incident in class involving a known pornography
photographer, Robert Mapplethorpe. Appellant told the students
he could never show them Mapplethorpe’s pictures and that they
should never search him in class. However, Jose C. proceeded to
look up the photographer in class, and got in trouble with
appellant. Principal Bennett reported this additional incident to
LAUSD administrators.

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The investigation and parent notification
LAUSD Northeast Operations Director Rhonda Sparks
directed Bennett to complete a suspected child abuse report and
to prepare to send a “72-hr parent notification letter” and
“provide the employee with a 5-day home assignment letter if he
returns tomorrow.”
At the time Policy Bulletin 6211.0 set forth LAUSD’s
procedures regarding allegations of inappropriate conduct by
employees. The bulletin provided that “[w]hen credible
allegations of employee misconduct arise that threaten students,
staff or workplace safety, District leaders must take appropriate
and timely administrative action.” The allowable procedures
included a five working day temporary removal of the employee.
The bulletin further directed that for allegations of sexual
misconduct, “Unless otherwise advised by law enforcement
agencies within the 72-hour turn-around time, LAUSD will
notify parents and guardians of alleged employee misconduct.”
Such notification is known as a “72-hour letter.” The policies
allowed that if there were “extenuating reasons not to send
notification,” the Administrator of Operations would inform the
site administrator.
In compliance with LAUSD’s direct instructions, Principal
Bennett contacted the police. However, the police declined to get
involved, stating that no crime had been committed. Law
enforcement gave the school permission to proceed with an
administrative investigation.
On November 6, 2014, appellant was informed by letter
that he was removed from the worksite for five days while an
investigation was undertaken into “a recent incident that was
reported on November 5, 2014.”

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Principal Bennett and Vice Principal De Santiago
conducted the investigation, which consisted of student
interviews.
On the evening of November 6, 2014, Principal Bennett
emailed Sparks and Administrator of Operations Daryl
Narimatsu regarding the results of the investigation. He
intended to send out the 72-hour letters “during 2nd period
tomorrow,” but he had reservations about doing so. Bennett
stated:
“The amount of fear and chaos the letters will
garner seems completely out of proportion to the
allegation made and any of the facts uncovered at
this point. There is not an allegation of sexual abuse,
yet everyone who reads the letter will assume this is
the [case].”
Bennett explained that it appeared that appellant
“introduced a photography assignment in which the students
were to research three famous photographers. It seems likely
that he used extremely poor judgment by mentioning an
inappropriate photographer amongst a list of famous
photographers.” He then told the students “not to search the
inappropriate photographer in class or at home.” This motivated
a ninth grader to research the photographer. Unfortunately,
almost every ninth grader had heard about the inappropriate
Facebook posting. However, “[n]o student at this point has
indicated any social media or inappropriate contact with
[appellant].”
In response to Bennett’s email, Narimatsu responded, “The
district’s policy is that whenever there is a sexual allegation -- we
need to send the 72 hour letter out. . . . If the allegations are
unfounded -- the letter will not be sent.” Bennett felt that he had
provided his professional input, but ultimately “the district has

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their protocol.”2 On November 7, 2014, as directed, Bennett sent
out the 72-hour letters to parents, along with “robocalls.” The
letter did not identify appellant by name. Instead, it stated:
“The purpose of this letter is to inform you of
an investigation involving alleged misconduct by a
school employee who has been removed from campus
pending the results of the District’s administrative
investigation.”
Although appellant was not mentioned by name, the
environment at Polytechnic is “tight knit,” and “everyone knew”
of the allegations. Due to this tight knit environment, one
administrator opined that “[appellant] should not remain at Poly;
this is not a viable option.”
Appellant is instructed to return to his classroom
On November 11, 2014, appellant learned for the first time
of the Facebook profile. He emailed Bennett, informing him that
this was a “horrific” act of “Cyber Bullying” and that he had
contacted Facebook about the false page.3
After the five-day leave had expired, LAUSD
administrators instructed appellant to return to his classroom at
Polytechnic. Appellant alleges that LAUSD had taken no steps
to inform the parents or the students that appellant had been
cleared of the allegations of misconduct. Further, appellant
alleges that LAUSD instructed appellant not to discuss the
pending investigation against him, preventing him from
2 Bennett stated that the district “made an accommodation”
for his opinion and “at least revised the letter.”
3 Appellant alleges that on March 2, 2015, the student who
created the fake Facebook page was identified and arrested. The
student pled guilty to the charge of impersonating appellant
online.

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defending himself. Appellant feared that returning to his
position at Polytechnic without being cleared would invite
hostility and disrespect. As a result, appellant suffered a severe
panic attack.
Appellant’s doctor subsequently informed LAUSD that
appellant was suffering from acute stress disorder stemming
from his abrupt leave initiated on November 6, 2014. The stress
disorder lasted for more than one month and became an episode
of Post Traumatic Stress disorder (PTSD).
Appellant’s doctor opined that returning to Polytechnic
would exacerbate appellant’s episode of PTSD.
Appellant requests reasonable accommodations
On December 12, 2014, Demetrius Patrick, Disability
Coordinator in the Integrated Disability Management Branch of
LAUSD, received an application for reasonable accommodation
from appellant. Appellant stated that his medical conditions
were acute stress disorder, PTSD, and Depression. Appellant
requested to be transferred to another campus or to the main
campus of Polytechnic, and be allowed to take his support pet (a
Siberian cat) to work. Appellant stated that he could not drive
unless the cat was with him in the car. The cat was “attuned to
[his] emotions and health” and was trained to alert appellant
when something was wrong, as well as comfort him when he was
in distress or having panic attacks.
The reasonable accommodation hearing was held on
January 20, 2015. Appellant’s request to have a service animal
at work was approved subject to certain conditions. Appellant
was assigned to a substitute teaching post at ArTES School at
Cesar Chavez Learning Academy (ArTES).

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Appellant’s experiences at ArTES and withdrawal of
accommodation
Appellant reported harassment and insensitivity to his
disability while he was working at ArTES. Appellant reported to
the principal, John Lawler, that two employees mocked him and
made fun of him. He also reported that employees spoke of his
attorney in a condescending manner. Since appellant sensed
hostility when he went to the main office, he requested that his
time card be kept in the library. That request was denied.
On February 23, 2015, Lawler informed appellant in
writing that he could no longer bring his assistive pet to class.
Several staff members and students had complained about cat
allergies, and a student at a neighboring academy had a severe
reaction brought on by cat hair. While it was unclear whether
the reaction was brought on specifically by appellant’s assistive
pet, it was clear that there was at least one student on campus
with severe allergies to cats. Appellant was directed to stop
bringing the pet to campus.
On March 20, 2015, appellant was placed on administrative
leave and directed to attend a fitness for duty examination. In a
letter dated March 24, 2015, appellant’s attorney demanded that
LAUSD justify its direction that appellant submit to a fitness for
duty examination. The letter accused LAUSD of engaging in
“ongoing and traumatizing harassment of [appellant]” since its
decision to suspend him in November 2014. The letter accused
LAUSD of “warehousing” appellant at his new position, “confined
to sit in one room each and every day, with no work to do.”
Appellant also argued that the denial of the use of his support
and service animal was a violation of federal and California law.
On September 25, 2015, appellant entered into a
“Compromise and Release” settling appellant’s workers’

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compensation claims against LAUSD. Appellant agreed to resign
from employment with LAUSD.
PROCEDURAL HISTORY
Appellant filed his complaint against LAUSD on August 19,
2015. Appellant asserted seven claims under the Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900
et seq.): (1) sexual harassment and discrimination; (2) disability
discrimination; (3) failure to accommodate disability; (4) failure
to engage in a good faith interactive process; (5) retaliation; (6)
failure to prevent harassment and discrimination; and (7)
harassment and discrimination based on sexual orientation.
Appellant alleged three tort causes of action against LAUSD: (1)
defamation; (2) invasion of privacy – false light; and (3)
intentional infliction of emotional distress (IIED).
In September 2015, LAUSD filed a demurrer as to the
three tort causes of action on the ground that under Government
Code section 815, public entities are not liable for non-statutory
tort claims. The demurrer was sustained with leave to amend.
Appellant filed his first amended complaint (FAC) on April
22, 2016. Appellant restated the defamation, invasion of privacy
- false light and IIED claims pursuant to Government Code
section 815.2.
LAUSD filed its anti-SLAPP motion on May 18, 2016. The
motion sought to strike all 10 of appellant’s causes of action.
LAUSD argued that the entire complaint arose from LAUSD’s
investigation of student allegations of misconduct, which is
protected activity pursuant to section 425.16. LAUSD further
argued that appellant was unable to show a probability of
prevailing on the claims.
Appellant timely opposed the motion on September 21,
2016. LAUSD filed its reply on September 27, 2016.

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The trial court heard oral argument on October 4 and 14,
2016. In a written order filed October 14, 2016, the trial court
denied in part, and granted in part, LAUSD’s motion.
Specifically, the court denied the motion as to appellant’s second
through fourth causes of action for disability discrimination,
failure to accommodate, and failure to engage in a good faith
interactive process. The court noted that “[Appellant’s]
allegations that [he] was discriminated and harassed because of a
service pet that he was originally allowed to keep does not
concern [LAUSD’s] investigation into alleged improper conduct.”
However, as to “the remaining allegations and causes of
action concerning [respondent’s] investigation, and subsequent
communications, surrounding allegations of inappropriate
behavior by [appellant] and the vulgar Facebook account,” the
court found that those allegations did concern protected activity.
The court noted that “failure by [LAUSD] to investigate and
remediate potential cases of child abuse and endangerment is the
impetus for numerous tort-based lawsuits.” The court thus found
that LAUSD’s “investigation and corresponding letter constitute
both an official proceeding authorized by law and
communications in anticipation of a lawsuit.” The court struck
the eighth and ninth causes of action for defamation and invasion
of privacy--false light and found that these allegations could not
form the basis of the IIED cause of action. The court further
found that LAUSD’s actions were privileged pursuant to Civil
Code section 47, subdivision (c).4
4 Section 47, subdivision (c) provides that: “A privileged
publication or broadcast is one made: [¶] . . . In a communication,
without malice, to a person interested therein, (1) by one who is
also interested, or (2) by one who stands in such a relation to the
person interested as to afford a reasonable ground for supposing

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The remaining FEHA causes of action -- the first, fifth,
sixth and seventh causes of action for sexual harassment and
discrimination; retaliation; failure to prevent harassment,
discrimination and retaliation; and sexual orientation
harassment and discrimination, were mixed causes of action
arising out of both protected and nonprotected activity. The court
held:
“[Appellant] may not use [LAUSD’s] actions
taken in connection with the reports of inappropriate
conduct that [LAUSD] investigated. [Appellant],
however, also bases his FEHA-claims on other
allegations, such as harassment by students and a
failure to accommodate his service animal on the
basis of his alleged disability. Therefore, to the
extent that these claims do not implicate the
protected activity previously discussed, the court
DENIES the motion.”
On December 13, 2016, appellant filed his notice of appeal.
DISCUSSION
I. Applicable law and standard of review
A special motion to strike under section 425.16, also known
as the anti-SLAPP statute, allows a defendant to seek early
dismissal of a lawsuit involving 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.” (§ 425.16, subd. (b)(1).)
Actions subject to dismissal under section 425.16 include
those based on any of the following acts: “(1) any written or oral
statement or writing made before a legislative, executive, or
the motive for the communication to be innocent, or (3) who is
requested by the person interested to give the information. . . .”

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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 official
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.” (§ 425.16,
subd. (e).)
“A SLAPP is 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.’ (§ 425.16,
subd. (b)(1).) Thus, evaluation of an anti-SLAPP motion requires
a two-step process in the trial court. ‘First, the court decides
whether the defendant has made a threshold showing that the
challenged cause of action is one “arising from” protected activity.
(§ 425.16, subd. (b)(1).) If the court finds such a showing has
been made, it then must consider whether the plaintiff has
demonstrated a probability of prevailing on the claim.’
[Citations.]” (Nygard, Inc. v. Uusi-Kerttula (2008) 159
Cal.App.4th 1027, 1035 (Nygard).) “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.)
“‘Review of an order granting or denying a motion to strike
under section 425.16 is de novo. [Citation.] We 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

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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
the plaintiff as a matter of law.” [Citation.]’ [Citations.]”
(Nygard, supra, 159 Cal.App.4th at p. 1036.)
II. The anti-SLAPP motion was properly granted
A. Timeliness
We first address the timeliness of LAUSD’s motion.
Generally, “[a] party may not file an anti-SLAPP motion more
than 60 days after the filing of the complaint, unless the trial
court affirmatively exercises its discretion to allow a late filing.
[Citation.]” (Platypus Wear, Inc. v. Goldberg (2008) 166
Cal.App.4th 772, 775; § 425.16, subd. (f).) Here, the parties agree
that LAUSD filed its motion outside of the 60-day period as to the
original complaint, but within 60 days after the filing of the FAC.
Thus, we must determine whether the trial court in this matter
abused its discretion to permit the motion. (Hewlett-Packard Co.
v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1187.) A claim that
the trial court abused its discretion “requires the appellant to
demonstrate that the trial court applied the statute in a manner
that is incompatible either with the statute’s actual mandate, or
with its ‘purposes and policy.’ [Citation.]” (Id. at p. 1188.)
We find that the trial court did not abuse its discretion in
hearing LAUSD’s motion on the merits. First, courts that have
considered this issue have determined that an anti-SLAPP
motion filed within 60 days of the filing of an amended complaint
is timely. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th
298, 314 [finding anti-SLAPP motion timely where it was filed
within 60 days of service of the third amended complaint]; Lam v.
Ngo (2001) 91 Cal.App.4th 832, 840 [finding anti-SLAPP motion

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timely where it was filed 64 days after filing of the first amended
complaint].)5
In support of his argument that LAUSD’s motion was
untimely, appellant cites two cases. As to the first case, review
has been granted by the Supreme Court. (See Newport Harbor
Ventures LLC v. Morris Cerullo World Evangelism (2016) 6
Cal.App.5th 1207, review granted Mar. 22, 2017, S239777.)
Thus, the case has no binding or precedential effect. (Cal. Rules
Court, rule 8.1115(e).)6 In Newport, the anti-SLAPP motion was
filed “within 60 days of service of a third amended complaint.”
(Newport, at p. 1218.) We find that the case is not persuasive as
the analysis was specific to the procedural history of that case,
where numerous demurrers, motions to strike, and a summary
judgment motion had previously been ruled upon, “[t]he parties
had engaged in extensive discovery and the trial court had ruled
on several discovery motions.” (Id. at p. 1219.)
5 In fact, appellant’s opposition to the anti-SLAPP motion
states that LAUSD “filed the present Anti-SLAPP motion on May
18, 2016, thirty days before the deadline for such a motion.” As
LAUSD points out, appellant argued in his opposition that the
motion was improper because it exceeded the page limit for such
motions, not because it was not timely filed. Appellant merely
pointed out that “‘A memorandum that exceeds the page limits of
these rules must be filed and considered in the same manner as a
late-filed paper.’ (CRC Rule 3.113(g).)” Thus, it appears that
appellant did not make this timeliness argument to the trial
court. However, the trial court made an explicit finding that the
motion was timely. We exercise our discretion to consider the
timeliness argument on appeal.
6 California Rules of Court, rule 8.1115(e), provides that any
citation to a Court of Appeal opinion of which review has been
granted “must note the grant of review.” Appellant failed to do so
in his opening brief which was filed after the grant of review.

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The second case, Hewlett-Packard Co. v. Oracle Corp.
(2015) 239 Cal.App.4th 1174, is also distinguishable. In Hewlett-
Packard, the defendant brought an anti-SLAPP motion after the
trial court had found in a bifurcated trial that the defendant was
liable for certain obligations, on the eve of trial on the issues of
breach and remedy. Under the circumstances, the motion was
denied as untimely because it was “late under any reasonable
construction of the facts.” (Id. at p. 1178.)
Such is not the case here. Appellant had filed one prior
complaint, and LAUSD successfully demurred to the three tort
causes of action which were ultimately stricken, in whole or in
part, under the anti-SLAPP. Upon the filing of appellant’s FAC,
those tort causes of action were, for the first time, properly stated
against LAUSD. LAUSD filed its anti-SLAPP within 60 days.
Under the circumstances, even if it had been untimely filed, the
trial court had discretion to hear the motion at the time it was
filed.
In sum, pursuant to the authorities discussed above,
appellant’s motion was timely filed. Even if it was not timely
filed, the trial court acted within its discretion in hearing and
determining the motion on its merits.
B. Section 425.16 analysis
1. Protected activity
a. Acts related to the investigation were
protected
The threshold question in evaluating the section 425.16
motion is whether the stricken portions of the FAC arise from
protected activity. We find that they do. (Nygard, supra, 159
Cal.App.4th at p. 1035.)
LAUSD had the initial burden of showing that the causes
of action against it arose from protected activity. (§ 425.16, subd.
(e).) LAUSD argued that the initial investigation was an official

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proceeding authorized by law and that activities related to
investigations performed in connection with litigation are
protected activity.
Statements and writings made during an initial
investigation into allegations of wrongdoing are protected under
section 425.16, subd. (e)(2). (Hansen v. Department of Corrections
and Rehabilitation (2008) 171 Cal.App.4th 1537, 1544 (Hansen).
An internal investigation is an official proceeding authorized by
law. (Ibid.) “The entire disciplinary process, commencing with
the receipt of complaints about an employee and proceeding
through the investigation and disposition, constitutes an ‘official
proceeding authorized by law.’” (Nam v. Regents of University of
California (2016) 1 Cal.App.5th 1176, 1186 (Nam).) Even in
situations where an individual is never charged with misconduct
or a crime, “communications preparatory to or in anticipation of
the bringing of an official proceeding are within the protection of
section 425.16. [Citation.]” (Hansen, at p. 1544.) LAUSD thus
met its initial burden.
Appellant argues that the LAUSD internal investigation
was not an official proceeding, and the 72-hour letter was not
part of an official proceeding. These questions were recently
considered by this District in Okorie v. Los Angeles Unified
School Dist. (2017) 14 Cal.App.5th 574 (Okorie). Okorie involved
a similar situation. A student made an allegation against a
teacher, and the teacher was immediately removed from his
classroom and sent home. During the investigation into the
allegations, the principal of the school “advised the school’s
parents that Okorie had been ‘walked off campus for misconduct
and the . . . safety of staff and students.’” (Id. at p. 582.) When
Okorie later sued LAUSD for discrimination under FEHA, as
well as intentional infliction of emotional distress and
defamation, the internal investigation and communications to

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parents were protected conduct under section 425.16. The court
concluded, “[i]t is well established that internal investigations
constitute an ‘official proceeding authorized by law.’” (Id. at p.
594.) As to the parent communications, the court found that
“investigation-related speech allegations -- e.g., statements to
parents and others about Okorie’s removal from the classroom
. . . -- were protected by the anti-SLAPP statute.” (Ibid.) Thus,
we reject appellant’s argument that these actions were not
protected.
b. Protected activity forms the basis of the
stricken portions of the FAC
Appellant argues that even if some of LAUSD’s actions are
protected under section 425.16, not all of LAUSD’s actions in
connection with the investigation are protected. Specifically,
appellant argues that the trial court did not consider the
interplay between an employer’s obligations under FEHA to
protect an employee who is facing harassment at work with anti-
SLAPP’s protections for internal investigations at the workplace.
Appellant distinguishes Hansen on the ground that in Hansen
the employee alleged that the employer had made up the internal
investigation to punish the employee for whistleblowing. Here, in
contrast, appellant argues, appellant does not challenge the
appropriateness of the internal investigation, but the limits of
that protected conduct when the investigation conflicts with an
employer’s simultaneous obligations under FEHA.
Appellant cites several cases in support of this argument.
These cases, appellant explains, have tackled the interplay
between FEHA and the anti-SLAPP statute. We find these cases
distinguishable because, unlike the stricken claims in this
matter, the claims at issue did not arise from protected action.
In Department of Fair Employment & Housing v. 1105 Alta
Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 (Alta

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Loma), a landlord appealed from the denial of his anti-SLAPP
motion, arguing that an unlawful detainer action and related
communications to a disabled tenant were protected activity.
The denial of the anti-SLAPP motion was affirmed on appeal
because the acts that formed the basis of DFEH’s complaint were
not acts that the landlord undertook in furtherance of the
eviction itself. (Id. at p. 1284.) Instead, the complaint alleged
the landlord refused to provide reasonable accommodations to the
disabled tenant. (Ibid.) The lawsuit did not, in fact, challenge
the landlord’s act of filing the unlawful detainer action. That
action, and the letters between the parties, were merely evidence
of the landlord’s failure to accommodate the disabled tenant. (Id.
at p. 1285.)
Similarly, in Martin v. Inland Empire Utilities Agency
(2011) 198 Cal.App.4th 611, 624-625 (Martin), a former employee
alleged retaliation, racial discrimination, defamation and
wrongful termination after the employee refused to take action
against a subordinate who had filed a discrimination claim
against the employer. The employer filed an anti-SLAPP, which
was denied. In its motion, the employer mischaracterized the
complaint as based on statements made at a board meeting. In
fact, the board meeting was only briefly mentioned in the
complaint. (Id. at p. 625.) The action did “not arise from any
purported exercise of the defendants’ privileged governmental
acts,” thus the anti-SLAPP was properly denied. (Ibid.)
Appellant points to Nam, supra, 1 Cal.App.5th 1176 as the
decision most directly on point. In Nam, a former anesthesiology
resident filed a complaint against a university for retaliation,
discrimination, sexual harassment, and wrongful termination,
among other things. (Id. at p. 1184.) In considering the
university’s anti-SLAPP motion, the Court of Appeal noted that it
must look to the allegations of wrongdoing to determine whether

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the gravamen of the complaint was discrimination. “The mere
fact that the discrimination or retaliation triggered protected
activity does not mean that it arose from the protected activity.
[Citations.]” (Id. at p. 1190.) If the protected conduct is
“incidental” to the cause of action, anti-SLAPP dismissal is
inappropriate. (Ibid.) In short, the court concluded that “the
anti-SLAPP statute was not intended to allow an employer to use
a protected activity as the means to discriminate or retaliate and
thereafter capitalize on the subterfuge by bringing an anti-
SLAPP motion to strike the complaint.” (Ibid.)
The Nam court also emphasized the timeline of events, as
pled, was significant: “Plaintiff’s complaint and declaration make
perfectly clear that the basis of her claim, as in Alta Loma and
Martin, was defendant’s retaliation -- punishing her for rebuffing
[a superior] and calling attention to problems with the
department’s policies and procedures.” (Nam, supra, 1 Cal.5th at
p. 1193.) This portrayal of the facts conflicted with the
university’s, which insisted that “plaintiff exhibited
unprofessional conduct shortly after she started the program in
July 2009, thus triggering its constitutional right, indeed its
duty, to investigate the complaints and discipline her
accordingly.” (Id. at p. 1192.) Despite the factual “murkiness,”
the court was required to accept as true the plaintiff’s pleaded
facts. (Id. at pp. 1192-1193).7
7 Recently, in Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, the Supreme Court noted that
the timing of the initiation of the protected action can play a role
in determination of whether that action forms the basis of the
plaintiff’s claims. In discussing a prior opinion, the high court
justified the denial of an anti-SLAPP where a city had filed a
declaratory judgment seeking a ruling that its rent control
ordinance was constitutional. The court noted that the anti-

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Here, accepting as true the appellant’s facts as pled,
LAUSD’s allegedly wrongful acts began with a student allegation
and the immediate initiation of an investigation. This case does
not present the same factual murkiness that was present in
Nam, where the parties presented sharply contrasting versions of
the complex, drawn-out facts leading to the discipline and
ultimate termination of the resident. Instead, the first mention
of an act carried out by LAUSD is the initiation of the
investigation after LAUSD employees were informed of the lewd
Facebook post. There is no indication that appellant ever felt
that he had suffered discrimination or harassment prior to that
time. In other words, it was the initiation of the investigation
that gave rise to appellant’s claims.8
SLAPP was properly denied because the city’s potential
entitlement to a declaratory judgment “arose from the parties’
underlying dispute over whether the ordinance was
constitutional, a dispute that existed prior to and independent of
any declaratory relief action.” (Id. at p. 1063.)
8 We decline to address Wilson v. Cable News Network, Inc.
(2016) 6 Cal.App.5th 822, review granted March 1, 2017,
S239686, at length despite appellant’s reliance on the case. Like
Newport, review of the case has been granted by the California
Supreme Court. Again, in violation of California Rules of Court,
rule 8.1115(e), appellant failed to notify this court of that fact.
Further, in Wilson, the Court of Appeal determined that “the
gravamen of plaintiff’s employment-related causes of action was
defendants’ allegedly discriminatory and retaliatory conduct
against him, not the particular manifestations of the
discrimination and retaliation, such as denying promotions,
assigning him menial tasks, and firing him.” (Wilson, at p. 836.)
Here, as discussed, the stricken portions of appellant’s complaint
arise from LAUSD’s decision to initiate an investigation and
inform the school community of that investigation. Thus, Wilson
is not persuasive.

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The causes of action that were stricken in their entirety
from the complaint were the eighth cause of action for defamation
and the ninth cause of action for invasion of privacy - false light.
These causes of action arose from LAUSD’s acts of initiating the
investigation and sending out the 72-hour letter in connection
with the investigation. These acts were protected activity, thus
the anti-SLAPP was properly granted. Further, as the trial court
properly held, these acts cannot form the basis of appellant’s
IIED claim or his FEHA claims.
In sum, LAUSD has carried its burden of showing that, as
to the stricken portions of the FAC, the conduct by which plaintiff
claims to have been injured falls within section 425.16, subd. (e).
2. Probability of prevailing on tort claims
The trial court struck appellant’s eighth cause of action for
defamation; ninth cause of action for invasion of privacy - false
light; and tenth cause of action for IIED, in part. We agree that
appellant was unlikely to prevail on these stricken claims.
a. Defamation
Defamation requires “a publication that is false,
defamatory, unprivileged, and has a tendency to injure or cause
special damage. [Citations.]” (Hawran v. Hixson (2012) 209
Cal.App.4th 256, 277.)
The statements alleged in appellant’s complaint are the
letter and telephone messages that went out to the students and
their parents at the commencement of the investigation. These
statements were both true and privileged, and therefore cannot
form the basis of a defamation claim.
The letter sent to parents stated:
“The purpose of this letter is to inform you of
an investigation involving alleged misconduct by a
school employee who has been removed from campus
pending the results of the District’s administrative
investigation.”

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The letter further informed the recipients that at the
direction of the Los Angeles Police Department, the case was to
be handled administratively by LAUSD. The letter assured the
recipients that LAUSD would take every precaution to ensure the
safety of the students and staff at the school. Appellant was not
mentioned by name in either the letter or the phone calls, nor
was there any false statement regarding appellant contained
therein. Under the circumstances, appellant is not likely to
prevail on his defamation claim.
Further, the communications resulting from the
investigation were privileged under Civil Code section 47,
subdivision (c). (Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 472 [holding that
individuals’ disclosures of concerns regarding an after school
coach were privileged].) The communications were made
“without malice, to a person interested therein, (1) by one who is
also interested, or (2) by one who stands in such a relation to the
person interested as to afford a reasonable ground for supposing
the motive for the communication to be innocent, or (3) who is
requested by the person interested to give the information.” (Civ.
Code, § 47, subd.(c).)9 Contrary to appellant’s protests, all
parents of the school would be interested and concerned about
9 Malice, in the context of protected speech, means that the
defendants published the statement with “‘recklessness or . . .
knowledge of falsity.’” (Reader’s Digest Assn. v. Superior Court
(1984) 37 Cal.3d 244, 257.) There is no evidence that the LAUSD
employees believed that their communications regarding the
commencement of an internal investigation regarding an
unnamed teacher were false. We reject appellant’s suggestion
that the letter “clearly implied that [appellant] had engaged in
child abuse.” The letter informed the school community that
alleged misconduct by an unnamed school employee was under
investigation -- nothing more.

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potential misconduct by a teacher. Under the circumstances, the
communications were privileged and could not form the basis for
appellant’s defamation cause of action.
b. Invasion of privacy -- false light
To establish a claim for invasion of privacy, false light, a
plaintiff must show the same elements as required to establish a
defamation claim. (Hawran v. Hixson, supra, 209 Cal.App.4th at
p. 277.) As set forth above, appellant cannot meet those
requirements, thus he is not likely to prevail on this claim.
c. IIED
“A cause of action for intentional infliction of emotional
distress exists where there is “‘“‘(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.’”’” [Citations.]”
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) A defendant’s
conduct is “‘outrageous’” when it is so “‘“‘extreme as to exceed all
bounds of that usually tolerated in a civilized community.’”’” (Id.
at p. 1051.) Further, the defendant’s conduct must be “‘“‘intended
to inflict injury or engaged in with the realization that injury will
result.’”’” (Id. at p. 1051.)
LAUSD’s actions in initiating the investigation and sending
out the 72-hour letter and phone calls were not so extreme as to
exceed all bounds of what is usually tolerated in a civilized
community. In fact, the actions were dictated through LAUSD’s
written policies and procedures, which were designed to “ensure[]
that allegations of employee misconduct are dealt with promptly,
thoroughly, and effectively,” and to assist administrators and
supervisors “in handling such allegations, and in managing the
investigation and notification process.” Further, as set forth

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above, the acts were privileged, thus cannot form the basis of a
tort claim. (See Hansen, supra, 171 Cal.App.4th at pp. 1546-
1547.)
In sum, appellant is not likely to prevail on the tort claims
arising from the investigation and related acts. Thus, those
claims were properly stricken under section 425.16.
3. Probability of prevailing on FEHA claims
Appellant next argues that even if they arise in part from
protected activity, appellant’s FEHA claims arising from
LAUSD’s investigation are causes of action that have a likelihood
of success on the merits. Citing Baral v. Schnitt (2016) 1 Cal.5th
376, 384 (Baral), appellant urges that the anti-SLAPP statute
“does not insulate defendants from any liability for claims arising
from the protected rights of petition or speech. It only provides a
procedure for weeding out, at an early stage, meritless claims
arising from protected activity.” Thus, appellant argues, even if
appellant’s FEHA claims did arise in part out of protected
activity, LAUSD’s anti-SLAPP motion should fail as to these
claims because appellant presented sufficient evidence to
demonstrate a likelihood of success on the merits.
We disagree. The Baral court made clear that “an anti-
SLAPP motion, like a conventional motion to strike, may be used
to attack parts of a count as pleaded. [Citations.]” (Baral, supra,
1 Cal.5th at p. 393.) As set forth above, those portions of the
FEHA claims that are based on appellant’s initiation of an
investigation, and any acts undertaken in connection with the
investigation, are protected. Appellant is unlikely to prevail on a
claim that those acts amounted to discrimination or harassment.
There is simply no evidence that LAUSD initiated or carried out
those acts with discriminatory intent. Instead, the allegations
show that those acts were undertaken in direct response to the
complaints of students.

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In fact, appellant does not argue that the acts undertaken
in connection with the investigation arose from discriminatory
intent. Instead, appellant points to LAUSD’s alleged failures to
act -- its failure to investigate the students who made the claim;
its failure to shut down the Facebook profile; its failure to
consider whether sending out the 72-hour letter would create a
hostile work environment; its failure to send out a subsequent
letter exonerating appellant; and its failure to discipline students
who were making homophobic remarks. The anti-SLAPP was not
based on such failures, but was based on “actions taken by
[LAUSD] personnel as part of the process of investigating
allegations of misconduct by [appellant].”
Appellant’s FEHA claims have survived to the extent they
are based on harassment by students and LAUSD’s failure to
accommodate appellant’s service animal. To the extent that
those claims are based on the internal investigation of student
allegations and communications in connection therewith, they
were properly stricken.
DISPOSITION
The order is affirmed. Respondent is awarded its costs of
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT

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