Filed 2/26/13 Jacobsen v. Palamdale School Dist. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


LYNETTE JACOBSON,                                                    B239582

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. MC022822)
         v.

PALMDALE SCHOOL DISTRICT
et al.,

         Defendants and Appellants.




         APPEAL from an order of the Superior Court of Los Angeles County,
Randolph A. Rogers, Judge. Reversed and remanded with directions.
         Carpenter, Rothans & Dumont, Justin Reade Sarno and Louis R. Dumont for
Defendants and Appellants.
         Law Office of Brian E. Reed and Brian E. Reed for Plaintiff and
Respondent.
                                   INTRODUCTION
       Lynette Jacobson (Jacobson) is a third grade teacher at Ocotillo Elementary
School in the Palmdale School District (District). Roger Gallizzi (Gallizzi) is the
Superintendent of the District. At a public meeting of District‟s Board of Trustees
(Board), Jacobson spoke (as did three other individuals) against a proposed change
to District‟s field trip policy.
       Three months later at the beginning of the school year, Gallizzi delivered a
“Welcome Back” message to District‟s teachers, staff, students and parents in
which he expounded upon the theme that an educator‟s primary responsibility is to
create a learning environment for the students. In that context, Gallizzi referred to
four incidents in which he believed teachers had acted unprofessionally. He gave,
as one example, Jacobson‟s remarks from Board‟s public meeting, comparing her
attitude to that held by Scar, a character in “The Lion King.”
       Jacobson sued Gallizzi and District (collectively defendants), alleging that
Gallizzi‟s remarks were, among other things, defamatory. Defendants moved to
strike Jacobson‟s complaint pursuant to section 425.16.1 Their anti-SLAPP
motion2 urged that the gravamen of Jacobson‟s complaint arose out of Gallizzi‟s
constitutionally protected communications on issues of public interest and that
Jacobson could not demonstrate a probability of prevailing on her action. The trial
court denied the motion, finding that defendants had failed to demonstrate that
Gallizzi‟s “Welcome Back” message was made in furtherance of his constitutional
right to free speech.


1
       All undesignated statutory references are to the Code of Civil Procedure unless
noted to the contrary.
2
      “SLAPP” is an acronym for “strategic lawsuit against public participation.”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)


                                            2
      This defense appeal follows. First, we find that Gallizzi‟s message
addressed issues of public interest: the goal of public education, the role teachers
play in reaching that goal, and District‟s new field trip policy. Second, we find
that Jacobson failed to demonstrate a probability of prevailing on her claims
because Gallizzi‟s message was subject to the absolute privilege accorded
statements made by a government official in proper discharge of his official duties.
(Civ. Code, § 47, subd. (a) (hereafter section 47).) We therefore reverse the trial
court‟s order and direct it to grant the special motion to strike, to dismiss the
complaint with prejudice, and to award attorney fees to the defense.


              FACTUAL AND PROCEDURAL BACKGROUND
1. Facts Underlying Jacobson’s Lawsuit3
      As Superintendent, Gallizzi is responsible for District‟s overall operations.
This includes overseeing the day-to-day management of District and “ensuring that
all operations of the district are designed to provide rigorous academic challenges
and rigorous expectations of student achievement, facilitating the success of each
student.” In addition, he “maintain[s] and lead[s] an appropriate community and
media relations program” and, “as part of [his] official duties,” he “respond[s] to
comments or criticisms from parents, teachers, administrators, or other community
members.”
      According to Gallizzi, the subject of school field trips had “been a topic of
concern and conversation in the community for several years.” The issues include
the cost and funding of the trips, the educational value of the trips, and “the equity
or inequity of the number of field trips that certain schools were taking in the

3
       These facts are gleaned from Jacobson‟s complaint and the evidence offered in
regard to the motion to strike.


                                           3
district compared to others.” In regard to the latter concern, Gallizzi had “sought
feedback from the various school sites and PTA groups, as well as members of the
community.” Gallizzi‟s Advisory Committee (the Committee) had discussed the
issue several times. The Committee, comprised of members of the Parent Teachers
Association and “a parent representative from the school community,” “provides
input to [Gallizzi‟s] office and the Board of Trustees, which assists [their] efforts
in shaping policy for the school district.” By June 2010, the Committee
recommended to the Board “to curtail the number of field trips since an equitable
solution could not be reached.”
      On June 15, 2010, the Board conducted a public meeting that Gallizzi
attended. Towards the end of the meeting, several individuals asked to address the
Board about “non-agenda items.” One such item was the Committee‟s proposed
change to the field trip policy. One parent, one student, and two teachers (one of
whom was Jacobson) spoke against the proposal.
      Jacobson identified herself as “a community member, tax payer, parent,
child advocate, and lastly a teacher [at Ocotillo Elementary School] in the
Palmdale School District.” She stated that she was concerned about District‟s
“recently announced policy” “to cancel almost all field trips for the coming school
years, regardless of funding source.” According to Jacobson, two rationales for
this change had been advanced: inadequate funding at some schools and
“fairness.” After explaining how she believed adequate funding could be assured,
Jacobson stated:
              “More pressing, the issue of fairness has risen as the second
      obstacle to field trips in [our District]. Let’s just state up front, life
      isn’t fair. It wasn‟t fair that for several years [our] District has had
      some failing schools. It isn‟t fair that schools may now apply for
      million dollar grants that, if granted, will bring tremendous resources
      to only those schools. Grants by their very nature are not fair. Two of


                                           4
      my students went to the District Spelling Bee. One received the word
      judiciary, while the other had to spell glimpse. Not so fair?

             “The bottom line is that our country has been built on hard
      work and determination. Americans have always worked hard for
      what they achieve, and a sense of fulfillment is derived from reaching
      a goal. Isn‟t that one of the basic values we try to instill in our
      students? Hard work will get you ahead, as opposed to waiting
      around for someone to hand you something.

             “Teachers, parents, and students work hard to raise money for
      such field trips at Ocotillo [Elementary School]. Yes, we do have
      some PTA fund raisers. We make requests for support from local
      businesses. Each year Supervisor Antonovich donates money to our
      school. But . . . we have to put the work into asking. We have
      teachers who have collected plastic bags, and we recycle at Ocotillo.

            “I would be more than happy to share any of these ideas with
      colleagues.” (Italics added.)


      Jacobson ended by explaining the benefits of field trips.4
      After the four speakers had concluded their remarks, Board‟s President
(Mark Gross) “directed” “Gallizzi and staff to give due consideration to the
comments.”
      Gallizzi convened a meeting of the Committee. According to Gallizzi, “after
due consideration and diligence was given to the matter, it was determined that the
best course of action for the school district was to pare back the number of field
trips in order to ensure greater equality for all of our students.”
      At the beginning of the 2010-2011 school year, Gallizzi authored a
“Welcome Back” message. The message was a mission statement that, among
other things, “communicated [the] decision” to change the field trip policy. The

4
      Jacobson‟s remarks were recorded in the minutes of Board‟s meeting.


                                            5
message was distributed on a DVD that all teachers were required to watch. 950
teachers heard the DVD. In addition, Gallizzi‟s message was “published and
circulated” “to the entire group of employees of the Palmdale School District as
well as many parents and students.”
      Gallizzi‟s annual message addressed District‟s responsibility to create a
learning environment for students. His theme was “Learning for all, every child,
every day.” (Capitalization omitted.) He explained: “When it comes to student
learning, we can‟t sit back and do nothing. That is the moral imperative, that is our
moral responsibility.” After elaborating on his theme, Gallizzi stated that he felt
“compelled to share some very unprofessional remarks and actions [he] witnessed
[from teachers] in the past year” that he believed were contrary to or undermined
District‟s duty to create a learning environment for all students. First, Gallizzi read
a message that he had received from the leadership team at one school that stated:
“We do not believe it is our job to create student learning.” Next, Gallizzi said that
he had “heard a group of teachers in a meeting blame only students for low test
scores.” After that, he explained that he had “heard a teacher, in a staff meeting
say that expecting learning for all at high levels is like trying to teach Mandarin to
a cafeteria bench.” Gallizzi stated: “I know that this is not how most of us think.
But what is troubling is that to both of these outbursts no one responded. No one
said anything. I am confident that the room full of professionals was shocked into
silence at the statements and this was not a silence in agreement.” Lastly, Gallizzi
turned to the controversy surrounding District‟s field trip policy. He stated:
             “Finally, while trying to discern the proper approach to the
      dilemma of the equity situation regarding field trips, my Cabinet and I
      approached this from a point of view where everyone would be on a
      level playing field. Some schools have 20 times more field trips than
      others. Public education is not a place for haves and have nots. It is
      the great social equalizer in the words of Horace Mann. Much to our
      surprise, that is not how some felt. At a board meeting, staff came to

                                           6
      the podium and basically said, like the character Scar in The Lion
      King that life is not fair, and those children and parents at those
      schools need to be taught that lesson and should also be taught to
      work harder. It makes me wonder that, if they felt comfortable
      enough to say that in a public forum, then what do they say in the staff
      lounge, and what do they feel in their hearts? Field trips are
      opportunities for learning and there cannot be an opportunity gap in
      public education. Oh, and all of us in the board room were silent and
      I take responsibility and publicly apologize for that. [¶] We need to
      reflect as professionals why we remain silent to such sentiments. . . .
      [¶] This is the place to be if you believe in learning for all.” (Most
      italics added, boldface omitted.)


2. Jacobson’s Lawsuit
      In August 2011, Jacobson filed suit against Gallizzi and District based upon
the contents of the “Welcome Back” message.5 She alleged causes of action for
libel, slander, intentional infliction of emotional distress, invasion of privacy, and
improper retaliation for having exercised her First Amendment rights. In pertinent
part, she alleged:
             “Defendant Gallizzi, in essence, published the statement that
      led those who read, saw and heard his videotaped „welcome‟ speech,
      to believe that [Jacobson] was telling students and parents that it was
      their fault there were not going to be any field trips because they
      needed to work harder. Defendant Gallizzi likened [Jacobson] to
      „Scar‟ from The Lion King and went on to explain that conduct like
      [Jacobson‟s] was unacceptable and troubling.”

             “However, by what defendant Gallizzi said to literally hundreds
      of individuals, it was clear that he was retaliating against [Jacobson]
      by referring to her as a character in a popular movie, a character that
      was cruel, heartless and unsympathetic.”6

5
      Prior to initiating the lawsuit, Jacobson filed a Tort Claim which District denied.
6
      In her opposition to the special motion to strike, Jacobson summarized the
Wikipedia entry about Scar as follows. Scar was “a psychotic character concerned with

                                            7
      Jacobson sought compensatory and punitive damages.


3. The Special Motion to Strike
      Citing section 425.16, defendants moved to strike Jacobson‟s complaint.
The defense evidence included the minutes of Board‟s June 15, 2010 meeting, a
declaration from Gallizzi, and a transcript of his “Welcome Back” message.
      Jacobson‟s opposition included declarations from three teachers, each of
whom averred that they recognized Jacobson as the individual referred to in
Gallizzi‟s message and were shocked by his comments. A declaration from
Jacobson explained her position on field trips and opined at length about Gallizzi‟s
motive and intent in referring to her in the “Welcome Back” message. Jacobson
also furnished a transcript of her June 15, 2010 remarks at Board‟s meeting and a
Wikipedia entry about Scar. (See fn. 6, supra.) Lastly, Jacobson tendered copies
of District‟s civility policy and an administrative regulation, both of which
Jacobson claimed that Gallizzi had violated.




gaining power and would kill anyone he saw as competition. Scar plotted the murder of
his own brother and nephew and followed through with little remorse. Scar was a
narcissist and is most likely an archetype of King Claudius, the villain from Hamlet and
was inspired by the real life German dictator, Adolf Hitler. In the song „Be Prepared,‟ in
which Scar sings to the hyenas about how he will kill Mufasa (his brother) and become
King, there is a scene where Scar sits on a high up rock watching the hyenas march
along. This is very similar to the Nazi film, Triumph of the Will.
       “Scar pushes his brother off a cliff to his death in order to become King and uses
the same tactic on his nephew, Simba.”
       Jacobson concluded: “The point is that by equating [me] to being Scar, Defendant
Gallizzi was saying [I] was a vile, despicable person.”


                                            8
4. The Trial Court’s Ruling
       The trial court ruled that the defense had “failed to meet their burden to
demonstrate that Defendant Gallizzi‟s Welcome Back message was made in
furtherance of his constitutional right to free speech” and therefore denied the
special motion to strike.7,8




7
        Each party filed written evidentiary objections to its opponent‟s evidence. The
trial court‟s posted tentative ruling did not rule upon any of these objections. Counsel
pointed out this omission during the subsequent hearing but the judge still failed to make
any ruling.
        Reid v. Google, Inc. (2010) 50 Cal.4th 512 held, in the context of a summary
judgment motion, that when the trial court “fails to rule expressly on specific evidentiary
objections, it is presumed that the objections have been overruled, the trial court
considered the evidence in ruling on the merits of the summary judgment motion, and the
objections are preserved on appeal.” (Id. at p. 534, italics added.) Defendants urges that
the same principle should apply when an appellate court reviews the trial court‟s ruling
on an anti-SLAPP motion. In other words, defendants claim that their objections are
preserved and that they are entitled to a de novo review of the trial court‟s implicit
overruling of those objections. Assuming arguendo that defendants are correct on this
point, that principle does not benefit them in this case. Defendants have failed to identify
any specific objections they believe were improperly overruled and to argue that they
were prejudiced as a result. This constitutes a forfeiture of any appellate argument that
the trial court erred in implicitly overruling the defense objections to Jacobson‟s
evidence. (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.)
8
        Concurrently with filing their special motion to strike, defendants filed a demurrer
to Jacobson‟s complaint. The trial court overruled the demurrer to the causes of action
for libel, slander and invasion of privacy but sustained with leave to amend the demurrer
to the causes of action for intentional infliction of emotional distress and improper
retaliation for exercise of First Amendment rights. The propriety of that ruling is not
before us. For purposes of this appeal, the operative pleading is Jacobson‟s original
complaint. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 612-
613.)


                                             9
                                    DISCUSSION
A. An Anti-SLAPP Motion
      “A special motion to strike is a procedural remedy to dispose of lawsuits
brought to chill the valid exercise of a party‟s constitutional right of petition or free
speech. [Citation.] The purpose of [section 425.16] is to encourage participation
in matters of public significance and prevent meritless litigation designed to chill
the exercise of First Amendment rights. [Citation.] The Legislature has declared
that the statute must be „construed broadly‟ to that end.” (Fremont Reorganizing
Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1165.)
      Section 425.16 “„“establishes a procedure where the trial court evaluates the
merits of the lawsuit using a summary-judgment-like procedure at an early stage of
the litigation.”‟” (Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley).) The
statute posits a two-step process for determining whether a cause of action is
subject to a special motion to strike. “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).) „A defendant meets this
burden by demonstrating that the act underlying the plaintiff‟s cause fits one of the
categories spelled out in section 425.16, subdivision (e)‟ [citation]. If the court
finds that such a showing has been made, it must then determine whether the
plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)


B. The First Step in the Anti-SLAPP Motion: Jacobson’s Claims Arise From
   Protected Activity

      We review de novo the trial court‟s ruling on a special motion to strike.
(Flatley, supra, 39 Cal.4th at p. 325.) To decide whether defendants discharged
their burden of demonstrating that Jacobson‟s complaint arose from

                                           10
constitutionally protected activity, we review the operative pleading and the
supporting and opposing affidavits offered on the motion to strike. (Brill Media
Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329-330; see also
§ 425.16, subd. (b)(2).)
      In determining whether a claim arises from protected activity, as defined in
section 425.16, subdivision (b)(1), the “focus is not the form of the plaintiff‟s
cause of action but, rather, the defendant‟s activity that gives rise to his or her
asserted liability -- and whether that activity constitutes protected speech or
petitioning” as defined in section 425.16, subdivision (e). (Navellier, supra, 29
Cal.4th at p. 92.) “[W]e disregard the labeling of the claim [citation] and instead
„examine the principal thrust or gravamen of a plaintiff‟s cause of action to
determine whether [section 425.16] applies‟ and whether the trial court correctly
ruled on the . . . motion.” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177
Cal.App.4th 1264, 1272.) In this case, it is clear that Gallizzi‟s “Welcome Back”
message is the predicate of Jacobson‟s lawsuit regardless of the specific cause of
action plead.
      Protected speech within the meaning of the anti-SLAPP statute includes
“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)(4).) It “extends to statements
and writings of governmental entities and public officials on matters of public
interest and concern that would fall within the scope of the statute if such
statements were made by a private individual or entity.” (Vargas v. City of Salinas
(2009) 46 Cal.4th 1, 17.) The “public interest” component “is met when „the
statement or activity precipitating the claim involved a topic of widespread public
interest,‟ and „the statement . . in some manner itself contribute[s] to the public
debate.‟” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA,

                                           11
Inc. (2005) 129 Cal.App.4th 1228, 1246.) The question whether something is an
issue of public interest “must be „“construed broadly.”‟” (Gilbert v. Sykes (2007)
147 Cal.App.4th 13, 23.) As we now explain, Gallizzi‟s message constitutes
protected speech as defined by this statutory provision.
      The thrust of Gallizzi‟s message—given in his capacity as Superintendent
and directed to and heard by teachers, school staff, parents and students—was an
exposition of what he believed to be the mission of District‟s schools: to create a
learning environment for all students. It cannot be denied that the purpose of
public education and the role that teachers play in fulfilling that purpose are
“issue[s] of public interest” (§ 425.16, subd. (e)(4)) vigorously debated throughout
the community. It is appropriate to include in that debate a discussion about which
actions and attitudes by teachers either further or inhibit the goal of creating a
learning environment. Citing examples of inappropriate behavior is an accepted
pedagogical technique to identify which conduct does and does not help reach a
particular goal. Gallizzi‟s veiled reference to Jacobson was simply one of four
examples he gave of what he believed was unprofessional conduct—three of which
went unanswered by colleagues when voiced, a fact that also troubled Gallizzi—
that inhibited fulfilling District‟s mission.
      Secondarily, Gallizzi used the message, given at the beginning of the school
year, to explain the rationale for the new field trip policy. For several years, field
trips had been a topic of public interest discussed throughout the community. Only
three months earlier, four individuals (including Jacobson) had addressed the new
proposed field trip policy at Board‟s public meeting. After the meeting, Gallizzi,
pursuant to the direction of Board‟s President, convened a meeting of the
Committee to make a final decision about field trips. The decision was made to
pare them back and Gallizzi took the opportunity of presenting the “Welcome
Back” message to address the newly adopted policy which was certainly an “issue

                                           12
of public interest” (§ 425.16, subd. (e)(4)) because it affected teachers, students,
parents and administrators employed by District.
      We therefore conclude that the entirety of Gallizzi‟s “Welcome Back”
message, including its references to what Gallizzi believed represented negative
attitudes by teachers (including Jacobson), was constitutionally protected speech
on issues of public interest: the purpose of public education, the role of public
school teachers in furthering that purpose and District‟s field trip policy. (Morrow
v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1436-1439
[school superintendent‟s critical statements about a school principal on whose
campus incidents of racially motivated student violence had occurred were
statements about “an issue of public interest”] and McGarry v. University of San
Diego (2007) 154 Cal.App.4th 97, 109-110 [statements by university officials
explaining why the head football coach was terminated were statements about “an
issue of public interest”]; see also Ghafur v. Bernstein (2005) 131 Cal.App.4th
1230, 1238 [“„Clearly, the governance of a public school system is of the utmost
importance to a community, and school board policies are often carefully
scrutinized by residents.‟”].)
      Jacobson‟s contrary argument is not persuasive. She simply argues that
Gallizzi‟s statements “were not protected activity; there is no First Amendment
right to make false statements so the anti-SLAPP motion to strike fails.”
(Capitalization omitted.) This argument misapprehends the two-step process the
trial court undertakes in ruling upon a special motion to strike. The trial court is
not required to accept the plaintiff‟s claim that unprivileged defamatory statements
were made and the defense is not required to show that no defamation occurred.
Instead, the defense, in the first step of the process, need only “present a prima
facie showing that the plaintiff‟s causes of action arise from acts of the defendant
taken to further the defendant‟s rights of free speech or petition in connection with

                                          13
a public issue. [Citation.] Only if the defendant makes this prima facie showing
does the trial court consider the second step of the section 425.16, subdivision
(b)(1) analysis; at that point, the burden shifts to the plaintiff to make a prima facie
showing of facts which, if proven at trial, would support a judgment in the
plaintiff‟s favor [for, e.g., defamation]. [Citation.]” (Paul for Council v. Hanyecz
(2001) 85 Cal.App.4th 1356, 1365.)
      Further, none of the cases cited by Jacobson supports her argument that
Gallizzi‟s statements did not constitute protected speech within the meaning of
section 425.16, subdivision (e)(4). The vast majority of the cases involved fact
patterns in which the appellate courts concluded that the gravamen of the
plaintiff‟s case was not the defendant‟s constitutionally protected speech but,
instead, was conduct not protected by the First Amendment. (Scott v. Metabolife
Internat., Inc. (2004) 115 Cal.App.4th 404, 415-423 [personal injury action based
upon the plaintiff‟s use of dietary supplements arises from the defendant‟s
manufacture and sale of a defective product, not the manufacturer‟s exercise of
free speech even though the plaintiff included a cause of action for false
advertising]; Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109
Cal.App.4th 1308, 1317-1320 [action by local rent control board alleging that the
landlords sought to evade rent control statues is not subject to a motion to strike
because the landlords‟ actions were not taken in furtherance of their constitutional
rights to petition or to exercise free speech]; Gallimore v. State Farm Fire &
Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1397-1400 [lawsuit alleging that
insurer had mishandled claims is not subject to a motion to strike because the
defendant‟s activities did not arise from speech in connection with a public issue];
and Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1365 [campaign
money laundering is “not a valid activity undertaken by defendants in furtherance
of their constitutional right to free speech”].) In the other case cited by Jacobson,

                                           14
the appellate court concluded that a statutory exemption to a special motion to
strike applied. (City of Long Beach v. California Citizens for Neighborhood
Empowerment (2003) 111 Cal.App.4th 302 [legislative history of section 425.16,
subdivision (d) establishes that an action to enforce local laws governing campaign
contributions is not subject to a motion to strike].)


C. The Second Step in the Anti-SLAPP Motion: Jacobson Failed to Demonstrate
   a Probability of Prevailing Upon Her Claims

       Because defendants established that Jacobson‟s action arose from
constitutionally protected speech, we turn to whether Jacobson showed a
probability of prevailing on her claims.9 In that regard, Jacobson was required to
“„“„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 [her] is credited.‟”‟ [Citation.]” (Lin v. City of Pleasanton
(2009) 176 Cal.App.4th 408, 425.) We also consider the evidence offered by the
defense to determine whether it defeats Jacobson‟s case as a matter of law.
(Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398, and
cases cited therein.) The trial court must “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.)
       We find that Gallizzi‟s “Welcome Back” message was privileged, thereby
establishing as a matter of law that Jacobson did not and cannot demonstrate a
probability of prevailing upon the merits.
9
       Even though the trial court did not reach the issue, “we can address [it] as it is
subject to independent review. [Citation.]” (Roberts v. Los Angeles County Bar Assn.,
supra, 105 Cal.App.4th at pp. 615-616.)


                                            15
      Section 47 provides: “A privileged publication or broadcast is one made:
[¶] (a) In the proper discharge of an official duty.” The statute “confers
privileged status upon any statement made by a public official in the course of
discharging his official duties.” (Royer v. Steinberg (1979) 90 Cal.App.3d 490,
500.) The privilege applies to local officials, including school superintendents,
who engage in the policy-making process and “protects any statement by a public
official, so long as it is made (a) while exercising policy-making functions, and (b)
within the scope of his official duties.” (Id. at p. 501; Morrow v. Los Angeles
Unified School Dist., supra, 149 Cal.App.4th at pp. 1441-1442 [section 47 applies
to school superintendent].) The privilege is absolute and precludes liability even if
the defendant made defamatory statements with actual malice. (Saroyan v. Burkett
(1962) 57 Cal.2d 706, 708-710.)
      Further, “the executive privilege broadly „encompass[es] all discretionary
acts essential to the proper exercise of an executive function‟ decision.” (Morrow
v. Los Angeles Unified School Dist., supra, 149 Cal.App.4th at p. 1442.)
“„Because a public official‟s duty includes the duty to keep the public informed of
his . . . management of the public business, . . . public statements by such officials
are covered by the “official duty” duty privilege.‟” (Maranatha Corrections, LLC
v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075,
1089.) If the defense in a special motion to strike establishes that the statements
underlying the plaintiff‟s action are privileged under section 47, the trial court is
required to grant the motion. (Id. at pp. 1086-1091.)
      As Superintendent, Gallizzi is “the chief executive officer of the governing
board of the district.” (Ed. Code, § 35035, subd. (a).) In that capacity, he gave his
“Welcome Back” message at the beginning of the 2010-2011 school year. The
message was District‟s mission statement for the new school year. Not only was
the message required viewing for all teachers but it was also disseminated to

                                           16
school staff, parents and students. In this public message, Gallizzi set forth his
theme for the year and what he hoped to accomplish. In that context, he gave four
examples of what he believed to be inappropriate or negative attitudes of teachers
that could undermine the goal of creating a learning environment for all of the
students. In the example that indirectly referenced Jacobson, Gallizzi also
addressed the public controversy surrounding the change in the field trip policy
and explained why the decision to limit the number of field trips had been made.
This type of annual communication at the beginning of a school year explaining
policy is part and parcel of effective administration of a public school district and
is therefore covered by the absolute privilege found in section 47. (See, e.g.,
Kilgore v. Younger (1982) 30 Cal.3d 770, 782 [section 47 applies to the Attorney
General‟s press conference during which he released a report that suggested the
plaintiff was involved in criminal activity]; Saroyan v. Burkett, supra, 57 Cal.2d at
pp. 710-711 [section 47 applies to the Superintendent of Banks‟ public statements
critical of the plaintiff]; Maranatha Corrections, LLC v. Department of
Corrections & Rehabilitation, supra, 158 Cal.App.4th at pp. 1087-1091 [section 47
applies to the Director of Corrections‟ public release of a letter critical of a
contractor and explaining the decision to terminate its contract]; Morrow v. Los
Angeles Unified School Dist., supra, 149 Cal.App.4th at pp. 1440-1443 [section 47
applies to the school superintendent‟s statements critical of a school principal]; and
Royer v. Steinberg, supra, 90 Cal.App.3d at pp. 500-503 [section 47 applies to a
school district‟s board of trustees‟ public statement explaining its reasons for
demoting the superintendent].)




                                           17
       Jacobson‟s respondent‟s brief contains no argument about section 47
although defendants‟ opening brief discussed the statutory provision at length.10
Our conclusion that the absolute privilege applies makes it unnecessary to discuss
any of Jacobson‟s arguments unrelated to the privilege, to consider whether
Jacobson demonstrated a probability of prevailing based upon an analysis of the
elements of each cause of action, or to reach any of defendants‟ alternative theories
as to why the motion to strike should have been granted.


D. Attorney Fees
       “[A] defendant who prevails on a section 425.16 motion is entitled to an
award of attorney fees [citation], including attorney fees for the appeal [citation].”
(Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1404; see also Morrow v. Los
Angeles Unified School Dist., supra, 149 Cal.App.4th at p. 1446.) Accordingly,
we reverse the trial court‟s order denying the special motion to strike and remand
the cause to the trial court to determine, among other things, the amount of
attorney fees to which defendants are entitled.




10
        Defendants raised this absolute privilege in the trial court in their special motion to
strike. Jacobson offered no specific argument or authority against its application.

                                              18
                                 DISPOSITION
            The trial court‟s order denying defendants‟ motion to strike under
section 425.16 is reversed. The matter is remanded with instructions to vacate the
order, to enter a new order granting the motion, to dismiss Jacobson‟s complaint
with prejudice, and to award attorney fees to defendants (including attorney fees on
appeal) in an amount it will determine. Defendants are to recover their costs on
appeal.
            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             WILLHITE, J.




            We concur:




            EPSTEIN, P. J.




            SUZUKAWA, J.




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