Poof!, SLAPP: Trial Court’s Award Of $11,075 In Attorney Fees And Costs To Successfully SLAPPing Defendant Goes Poof! When 4/3 DCA Reverses SLAPP Grant

Plaintiff’s Attempt To Initiate A Review Hearing With Private Swim Club On Coach’s Conduct Did Not Qualify As A Code Civ. Proc. § 425.16(e)(1) Official Proceeding Authorized By Law, And Swim Club’s Responding Accusation Against Plaintiff’s Son Did Not Qualify As An Issue Of Public Interest Pursuant To Anti-SLAPP Law.

            In Burke v. Newport-Mesa Unified School Dist., Case No. G058492 (4^th Dist., Div. 3 November 23, 2020) (unpublished), plaintiff father’s teenage son was a competitive swimmer at his high school and a swim club.  Father alleged the swim club and high school had an arrangement whereby the swim club hired and paid for the aquatic coaches’ salaries for both the swim club and high school in exchange for exclusive use of the high school pool, and that the swim club dictated who coached for the high school.  When father emailed the swim club requesting, pursuant to the swim club’s written Code of Conduct, a review hearing of the harassment his son was subjected to by the swim club’s head coach (who was also head coach at the high school), the swim club responded with an email terminating his son’s membership – citing a false accusation against the son.  Father initially sued the swim club – alleging emotional distress and breach of contract.  Later, he filed an amended complaint to identify Newport-Mesa Unified School District and two of its employees as Does 8-10. 

            The District successfully SLAPPed back with arguments that the emotional distress claim stemmed from the email terminating son’s membership in the swim club, and that the email qualified for protection because it addressed an issue of “public interest” and was made before or in connection with an “official proceeding.”  The District was also awarded $11,075 in attorney fees and costs, in a subsequent hearing, for its successful anti-SLAPP motion.

            Father appealed, and the 4/3 DCA reversed the SLAPP grant and subsequent fees/costs award.  In a 3-0 opinion authored by Justice Goethals, the appellate panel concluded the content of the email did not qualify as an issue of public interest under Code Civ. Proc., § 425.16(e)(4) – which is sometimes referred to as a “catchall provision” of the anti-SLAPP law.  Additionally, father’s attempt to initiate a review under the private swim club’s code of conduct did not qualify as an “official proceeding authorized by law” pursuant to § 425.16(e)(1).  More significantly, pursuant to § 425.16(e)(2), the proceeding father attempted to initiate never happened and the issue of harassment by the swim coach was never under consideration.