                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            APR 23 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
D. N., by and through Christine Truong,          No. 18-55913
parent; CHRISTINE TRUONG,
                                                 D.C. No. 2:18-cv-01582-AB-AFM
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

LOS ANGELES UNIFIED SCHOOL
DISTRICT; et al.,

              Defendants-Appellees,

  v.


DIANE B. WEISSBURG,

              Counter-Defendant-
              Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Andre Birotte, Jr., District Judge, Presiding

                        Argued and Submitted April 8, 2019
                               Pasadena, California



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

      Christine Truong and her counsel Diane Weissburg (collectively,

“Appellants”) appeal the district court’s denial of their motion to strike Appellee

Los Angeles Unified School District (“LAUSD”)’s counterclaim alleging

Appellants recorded its confidential communications in violation of California law.

See Cal. Penal Code § 632. We affirm.

      Appellants moved to strike under California’s anti-SLAPP statute, which

permits a court to strike claims arising out of activity in furtherance of a

defendant’s right of petition or free speech. See Cal. Civ. Proc. Code § 425.16. To

succeed, Appellants must show the activity underlying LAUSD’s cause of action

fell within one of the four categories of activity protected under the statute. See id.

§ 425.16(e); Equilon Enters. v. Consumer Cause, Inc., 52 P.3d 685, 693 (Cal.

2002). The first three categories protect “written or oral statement[s].” Civ. Proc.

§ 425.16(e)(1)-(3). The fourth category covers “other conduct” in furtherance of

the right of petition or free speech but contains a “limitation” that the conduct be

“in connection with a public issue” or an “issue of public interest.” Briggs v. Eden

Council for Hope & Opportunity, 969 P.2d 564, 571 (Cal. 1999); see also Old



      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
                                           2
Republic Constr. Program Grp. v. Boccardo Law Firm, Inc., 179 Cal. Rptr. 3d

129, 140 (Cal. Ct. App. 2014) (“[O]nly one of the four categories of protected

activity covers [noncommunicative] conduct . . . .” (alteration original) (citation

omitted)).

      Here, the act underlying LAUSD’s counterclaim was the noncommunicative

act of recording, not any subsequent publication or use of that recording. See

Lieberman v. KCOP Television, Inc., 1 Cal. Rptr. 3d 536, 541 (Cal. Ct. App. 2003)

(“A section 632 violation is committed the moment a confidential communication

is secretly recorded regardless of whether it is subsequently disclosed.”). As

recording a conversation does not involve making an oral or written statement,

Appellants must therefore show their recording fell within this fourth category of

conduct in connection with a public issue.

      Assuming the recording furthered Truong’s right of petition, it did not relate

to a matter of public interest. The California Supreme Court has identified three

nonexclusive categories of conduct that satisfy this requirement: 1) conduct

concerning “a person or entity in the public eye”; 2) “conduct that could directly

affect a large number of people beyond the direct participants”; and 3) conduct

involving “a topic of widespread, public interest.” Rand Res., LLC v. City of

Carson, 433 P.3d 899, 907 (Cal. 2019) (quoting Rivero v. Am. Fed’n of State, Cty.,


                                           3
& Mun. Emps., 130 Cal. Rptr. 2d 81, 89 (Cal. Ct. App. 2003)). The recording did

not fit within any of these three categories as it contained typical lunch talk among

coworkers with scattered statements that Appellants contend are relevant to

establishing LAUSD employees inappropriately predetermined Truong’s son

(D.N.) had autism. The recorded individuals are not in the public eye, nor does the

fact that these individuals worked for a publicly funded institution transform the

recorded conversation into a matter of public interest. See Rivero, 130 Cal. Rptr.

2d at 90. Nothing said in the recording affects a large number of people. D.N.’s

educational plan is not the subject of widespread, public interest. Unlike other

cases involving surreptitious recordings intended to gather news or expose

wrongdoing to the public, Appellants have not provided any evidence that the

recording would affect, or be of interest to, anyone outside of the current litigation.

See, e.g., Safari Club Int’l v. Rudolph, 862 F.3d 1113, 1122 (9th Cir. 2017);

Lieberman, 1 Cal. Rptr. 3d at 541. Because Appellants have failed to make a

threshold showing that the recording relates to a public issue, we need not decide

whether LAUSD demonstrated a reasonable probability of prevailing on its

counterclaim. See Santa Monica Rent Control Bd. v. Pearl St., LLC, 135 Cal. Rptr.

2d 903, 910 (Cal. Ct. App. 2003).

      AFFIRMED.


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