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SUPERIOR COURT OF CALIFORNIA,

COUNTY OF VENTURA
OXNARD
MINUTE ORDER
DATE: 06/05/2015

TIME: 02:10:00 PM
JUDICIAL OFFICER PRESIDING: Tari Cody
CLERK: Chris Smith
REPORTER/ERM:

DEPT: J1

CASE NO: 56-2014-00459886-CU-DF-VTA


CASE TITLE: Bloom vs. Clark
CASE TYPE: Defamation
CASE CATEGORY: Civil - Unlimited

EVENT TYPE: Ruling on Submitted Matter

APPEARANCES

RULING ON SUBMITTED MATTER


The court took under submission Defendant's special motion to strike and now finds and rules as
follows:
All evidentiary objections are overruled. The court will give the evidence the appropriate weight and
consideration.
Defendant's special motion to strike is granted, as explained below:
Summary of Allegations
Plaintiff Robert Bloom filed a verified complaint alleging two causes of action. The first cause of action is
for libel, the second cause of action is for libel per se. Plaintiff is and has been employed as the head
boys' basketball coach at Westlake High School. Defendant James Clark is the father of two children,
Sydney and Sully, students at or previously attending Westlake High School. Sully played on the
Westlake High School varsity boys' basketball team. Defendant criticized many of Plaintiff's coaching
decisions concerning Sully. Eventually, Defendant allegedly published libelous statements concerning
Plaintiff in various emails. These emails are attached to Plaintiff's complaint. Some are fairly long and,
apparently, Plaintiff is not claiming every statement in every email is actionable. In his opposition to the
present motion Plaintiff states Defendant's "personal invectives, and opinions directed at [Plaintiff]
personally, and [Plaintiff's] coaching abilities isn't actionable.... [Defendant] has the right to be a jerk, but
when [Defendant] raised the bar calling plaintiff a fraud, a cheat, a tax evader, a crook, a tax cheat and
child abuser, he crossed the line." (Oppo. 1:16-18.) Plaintiff also states in his opposition that Defendant

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"authored a minimum of 6 emails ... and disseminated them to various people in which [Defendant]
purposefully libeled Plaintiff claiming crimes, tax evasion and child abuse." Thus, it appears the libelous
statements targeted by Plaintiff's complaint are not the name calling and coaching criticisms (which are
also alleged in the complaint, see e.g., 9, 10 and are contained in the emails), but Defendant's other
allegations that concern alleged crimes, and child abuse.
Plaintiff alleges he was libeled when Defendant circulated emails accusing Plaintiff of "personally and
willfully violating child labor laws." (11.)
In paragraph 16 Plaintiff refers to emails (Exhibit A) written by Defendant between July 1 and July 2,
2014, which "pronounced [Plaintiff] a thief, ('cheat[ed]' the district out of rental fees), a liar, tax evader, a
fraud and a 'child abuser.'"
Paragraph 17 refers to an email (Exhibit B) dated October 22 wherein Defendant stated Plaintiff is
"'under investigation by the IRS and DOL.'"
Paragraph 18 references an October 25, 2014, email (Exhibit C but found under tab B) written by
Defendant "claiming [Plaintiff] was 'hanging on to his job by a thread'... [and] was 'under investigation for
fraud, child abuse and willful intent to violate child labor laws.'"
Paragraph 19 references a November 4, 2014 email (Exhibit D) again accusing Plaintiff of child abuse
and of "'scamming the athletes, school and District' for years." The email also is alleged to include the
statement: "'You are now being stopped from stealing anymore money from kids.'"
Paragraph 20 of the complaint references a November 4, 2014, email (Exhibit E) wherein Defendant
calls Plaintiff a "'a crook and a child abuser of the worst order.'"
Paragraph 21 of the complaint alleges Defendant's claims are false "as to each act related to
compliance with labor laws and or 501c3 corporate compliance and salaries was [sic] performed within
the structure of the Corporation, not [Plaintiff] personally." In that same paragraph Plaintiff alleges that
Defendant knows that "his claims related to Westlake Sports Camp are phony and meant to defame,
damage and destroy [Plaintiff] and [Plaintiff's] professional reputation."
The first and second causes of action incorporate all of these referenced paragraphs and Exhibits A
through E attached to the complaint. The second cause of action for libel per se under Code of Civil
Procedure section 45 alleges Defendant published false and defaming statements that: "Plaintiff would
be indicted for crimes related to his business stole money [sic] from children and was a crook"; "Plaintiff
is a tax cheat"; "Plaintiff willfully violated Labor Laws"; "Plaintiff defrauded a public educational institution
for personal gain"; "Plaintiff committed willful and intentional tax fraud by using school grounds"; and
"Plaintiff is a child abuser and did so as an educator and basketball coach." ( 31.)
As indicated, attached to the complaint are several emails. Exhibit A is two emails. The first email is
dated July 1, 2014, and indicates it was sent to Plaintiff, Jim Benkert, Jeff Baarstad, and several other
people identified only by their email addresses: mikedunn1999@yahoo.com, timstephens4re@aol.com,
yourmom12345@aol.com, dvmmum@gmail.com, and pat.phelps5@verizon.net. It is addressed to "Slob
Rob." This email contains the statement "It appears you have cheated the District of $100,000 or more
for not paying or underpaying facility rental fees that you misrepresented on your facility rental forms"

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and other implied if not direct accusations concerning Plaintiff previously allegedly hiring minors to work
for his private business but not paying them. The email ends with a threat that unless Plaintiff "fix[es]"
the alleged improprieties Defendant complains about, Defendant will start calling Plaintiff "'Sloppy, Lying,
Law Breaking Rob' not just Slob Rob."
The second email in Exhibit A does not appear to be dated, but is sent to the same people and email
addresses as the first email in this exhibit. It is addressed to "CVUSD Board." This email refers to
Plaintiff as "this abuser" and frequently references "child abuse" perpetrated by Plaintiff and others.
Defendant extols his own credentials and experience in operating non-profit camps and states "Slob Rob
Bloom thinks he can skirt all these issues [e.g., worker's compensation, minimum wage] with a fake
'non-profit' camp and, very sadly, involve other unsuspecting folks like the CVUSD Board in his
wrongdoings should he be found out and unable to pay a huge tax debt." Defendant states "I and now a
flock of parents have learned that people in WHS who abuse are experts at abusing and so long as
command-power and money flows their way in the abusive process, there is no intention to mend their
ways." The email goes on the state that "Jim Benkert, Bennett Wultkes and Slob Rob were openly
OPENLY using school resources to do 3 things that appear to commit CVUSD as a participant in
illegal and improper actions contributing to tax evasion and significant violations of child labor laws." The
email then lists these three things, which in summary, concern using school personnel and facilities to
promote an "illegally operated and fake non-profit camp in which child laborers have been abused since
2009," requiring high school boys' basketball players to attend 7th period "with the expressed purpose of
soliciting child labor for Westlake Sports Camp which many of the players knew to be illegally operated,"
and using school facilities at a "grossly inaccurate and fraudulent District facility use permits that deflated
actually [sic] rental fees due by perhaps as much as $100,000."
Exhibit B is an email dated October 22, 2014, sent to Jeff Baarstad and Jeff Davis, and copied to
Christina Harrison, Jim Benkert, and Plaintiff. The email is addressed to Jeff Baarstad. The email
indicates Christina Harrison, Jim Benkert, and Plaintiff are members of Mr. Baarstad's staff at Westlake
High School. The email again concerns Defendant's complaints about Plaintiff's "bully behavior,"
"intimidation," "threat," and "retribution" against basketball players but as discussed above, Plaintiff
concedes these statements are not actionable. The email states that Plaintiff "actively lies, and about
many subjects related to his involvement at Westlake High School" and that Plaintiff has engaged in
"other lies currently under investigation by the IRS and DOL, related to: status of his 'non-profit'
businesses, monies paid to the district for facility rental, ... failing to pay student-athletes under his
control a legitimate summer wage, requiring athletes to attend employment solicitation meetings during
school hours and on campus, and illegally requiring school administrative staff to process summer camp
participating forms during school hours."
Although there is a tab for Exhibit C there is no document underneath the tab. The complaint states that
Exhibit C is an email dated October 25, 2014. Such an email can be found under the tab for Exhibit B to
the complaint. This email was sent to Plaintiff, "J" at Je10hoops@aol.com, Jim Benkert, Baarstad
Superintendent and copied to Christina Harrison. It is addressed to Plaintiff and John Elliot. In the email
Defendant states his understanding that Plaintiff and Elliot are "hanging on to your coaching positions at
WHS by a single thread," and that Plaintiff and Elliot were "under investigation for fraud, child abuse, and
willful intent to violate child labor laws." Defendant states that he has "recently experienced... the same
kind of deceit, lies, and intimidation you inflicted on our son many times." The email ends with a threat
that if Plaintiff or Elliot or Jim Benkert "makes any other false claims, overtures, or assertions about any
member of our family, or makes any threat in any form toward my daughter's coach ... We will

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immediately bring legal action against you. Don't you dare think you can now attack and abuse our
daughter as you did our son and other student-athletes without concern about consequences for your
intimidating and illegal behavior."
Exhibit D is an email dated November 4, 2014, to Plaintiff, "J," Baarstad Superintendent, Sully Clark and
Cynthia Truhan (a member of the Concerned Parents' Group of Westlake High School). The email is
addressed to "Rob and John," and states that "we are not going away until your fraud and child abuse
stops." The email contains some of the same allegations in the earlier emails about "breaking child labor
laws and IRS inurement laws disallowed for nonprofit entities." Defendant accuses Plaintiff of
"repeatedly abus[ing] our son" and threatens Plaintiff that if he does not quit his job immediately "we will,
as parents who observed repeated abuse, retain the area's best personal injury attorney to make you
and the District realize that repeatedly abusing kids, even for money, won't be tolerated."
Exhibit E is an email dated June 28, 2014, sent to Tamara Miller by Defendant. Defendant states he
expects Plaintiff has been or will be "chased out of" Westlake High School. Child abuse is not something
I support... . He's a crook, and a child abuser of the worst order because he's smart enough and
charming enough to know how to continue to do it."
Special Motion to Strike
Defendant motion seeks to strike the entire complaint on the grounds that the emails contain protected
speech and that the emails are not actionable under Code of Civil Procedure section 425.16, known as
the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Under the statute: "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."
(CCP 425.16(b)(1). )
Code of Civil Procedure section 425.16 subdivision (e) states:
An "act in furtherance of a person's right of petition or free speech under the United States or California
Constitution in connection with a public issue" includes: (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 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.
"A motion pursuant to section 425.16 requires a two-step analysis. First, the court must decide whether
the Defendant has made a threshold showing that the challenged causes of action arise from a
protected activity. A defendant meets this burden by showing the acts alleged in plaintiff's causes of
action fit into one of the categories stated in section 425.16, subdivision (e). If the court determines the
defendant has made such a showing, it must then determine whether the plaintiff has demonstrated a
probability of prevailing on the claim." (Lee v. Fick (2005) 135 Cal. App. 4th 89, 95 (internal citations
omitted).

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Step One Protected Activity


Defendant contends his published statements contained in the emails are protected under all four
categories listed under subdivision (e). (See Motion, p.6, lines 20-26.)
Plaintiff concedes the "personal invectives, and opinions directed at [Plaintiff] personally, and [his]
coaching abilities isn't actionable defamation." Instead, Plaintiff argues "when [Defendant] ... repeatedly
call[ed] Plaintiff a fraud, a cheat, a tax evader, a crook, a tax cheat and child abuser, [Defendant]
crossed the line from protected opinions to accusations of fact which are not ... subject to CCP
425.16." Plaintiff argues none of Defendant's statements come within any of the four categories under
subdivision (e). Plaintiff contends that the "gravemen [sic] of the Complaint, the offending emails, ... is
that [Plaintiff] is allegedly a criminal and abused children in his capacity as the director of a Non-Profit. If
the court finds that ... some of [Defendant's] emails contained just some 'protected speech' but the
majority or thrust or graveman [sic] of the libel is related to [Defendant's] attacks on [Plaintiff] at Westlake
Sports Camp, the discussion ends, for purposes of anti-SLAPP."
Plaintiff argues the emails do not come within CCP section 425.16 subdivision (e)(3) or (4) because they
"require conduct to be in connection with an issue of public interest" and in making that determination
courts look to the gravamen of the plaintiff's causes of action. (Opp. p.4.) Plaintiff contends that the
gravamen of his complaint "the offending emails, ... is that [Plaintiff] is allegedly a criminal and abused
children in his capacity as the director of a Non-Profit." (Oppo. 5:7-10.) Plaintiff believes that the court
can find the gravamen "of the libel is related to [Defendant's] attacks on [Plaintiff] at Westlake Sports
Camp," and if so, "the discussion ends, for purposes of anti-SLAPP." (Id. p.5:10-13.)
However, the principal thrust of Plaintiff's complaint is that Defendant defamed him, the high school
basketball coach, by accusing Plaintiff of violating numerous laws, and that therefore Plaintiff should quit
or be fired. Even assuming the emails contain both unprotected and protected content, the protected
content (which Plaintiff apparently contends are Defendant's name calling and criticism of Plaintiff's
coaching style) are not incidental to the unprotected content (which Plaintiff apparently contends are
Defendant's accusations that Plaintiff cheated, stole and abused children). The emails all concern the
same subject Defendant's belief that Plaintiff should not be allowed to coach high school students
because of his allegedly illegal activity.
Plaintiff argues the emails were not sent to Conejo Valley School District Administrators but were
"disseminated broadly to third parties including unknown third people [sic] (See Exhibit B attached
Complaint), and Exhibit E to the Complaint." (Oppo. 5:20-23.) However, all of the recipients of the emails
were identified in Defendant's motion. All were either school personnel or interested third parties.
Communications between interested parties are protected. (Lee v. Fick, supra, 135 Cal.App.4th at 97.)
Plaintiff argues Exhibit E is a "stand alone libelous statement of 'fact.'" (Oppo. 5:22-24.) But the first
prong of the anti-SLAPP analysis does not consider the merits of the plaintiff's claims, only whether the
statements were made in furtherance of a person's right of petition or free speech.
Plaintiff contends five of the emails "were not addressed in any School Personnel [sic]or to 'any
proceeding authorized by law', or 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.' For the majority of [Defendant's] emails, [Defendant] addresses either

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[Plaintiff] ... or third parties who are not School employees." (Oppo. 6:4-10.) Plaintiff also contends many
of the emails were sent to "third parties who are clearly not 'cced' in an official capacity." (Oppo.
6:13-14.) But Defendant's motion identified all of the people who received the emails and they either
were school personnel or interested third parties. All of the emails but Exhibit E were sent to school
personnel as well as interested third parties. Exhibit E was sent only to an interested third party.
Communications between interested parties are protected if they are made in connection with an official
proceeding. (Lee v. Fick, supra, 135 Cal.App.4th at 96-97.)
"Communications to an official agency intended to induce the agency to initiate action are part of an
'official proceeding.'" (Lee v. Fick, supra, 135 Cal.App.4th at 96.) "[C]omplaints to school authorities
about a teacher or principal in the performance of his or her official duties are privileged." (Ibid.) "The
complaint itself is part of the official proceedings." (Id. at 97.) The fact that Defendant complained about
Plaintiff's conduct in connection with separate entities (i.e., Westlake Sports Camp), cannot be
considered in a vacuum since the complaints were intimately connected to Plaintiff's coaching, his
alleged illegal use of high school athletes, school personnel and facilities. And Plaintiff concedes that
Defendant's goal in sending the emails was to cause Plaintiff to lose or quit his job as coach at Westlake
High School. (See, e.g., Complaint 10, 11, 15, 23.)
The July 1, 2014, email (Exhibit A) was sent to school district personnel but it did not ask for any specific
action to be taken against Plaintiff. "There is no requirement that a letter of complaint expressly requests
an investigation, hearing or that the agency take any particular action." (Lee v. Fick, supra, 135
Cal.App.4th at 97.)
The emails also concerned a matter of public interest. (CCP 425.16(e)(3) & (4).) "[T]he question
whether something is an issue of public interest must be construed broadly."
Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 464 (internal
quotes omitted).) "[I]t may encompass activity between private people."
(Id. at 465 (internal quotes and citations omitted).)
Plaintiff repeatedly argues that because Defendant's criticisms concerned Plaintiff's alleged activities
unrelated to his coaching, they are not protected. But the emails did concern whether Plaintiff, a person
whom Defendant contends violated numerous laws, including violations involving the boys he coached
and the high school where he coached, should be allowed to continue to coach, i.e., his fitness to coach.
The fitness of a local high school boys' basketball coach, is a matter of public interest to all of the people
who received Defendant's emails. (See e.g., Hecimovich v. Encinal School Parent Teacher Organization,
supra, 203 Cal.App.4th at 468 [safety in youth sports, problem coaches/problem parents in youth sports,
are issues of public interest within the SLAPP law]; McGarry v. University of San Diego (2007) 154
Cal.App.4th 97, 64 Cal.Rptr.3d 467 [firing of college football coach is a matter of public interest].)
"Courts construe the anti-SLAPP statute broadly to protect the constitutional rights of petition and free
speech." (Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673, 679.) Defendant's
statements were concerning Plaintiff's qualifications as a coach even if the statements concerned
Plaintiff's conduct in connection with an entity legally separate from the school where he coached.
In summary, Defendant's emails are protected speech under Code of Civil Procedure section 425.16
subdivision (e).

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Step Two - Probability of Prevailing


Plaintiff has the burden of proving he can probably prevail on his claims. In making this determination
the court does not weigh the evidence but accepts as true all evidence favorable to the Plaintiff and
assesses the Defendant's evidence only to determine if it defeats the Plaintiff's claims as a matter of law.
(Hecimovich v. Encinal School Parent Teacher Organization, supra, 203 Cal.App.4th at 468-69.) "While
Plaintiff's burden may not be 'high,' he must demonstrate that his claim is legally sufficient. And he must
show that it is supported by a sufficient prima facie showing, one made with 'competent and admissible
evidence.' (Id. at 469 (internal citations omitted).)
"Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed
representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which
causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (Civ.
Code, 45 (emphasis added).)
Defendant asserts his emails are privileged under Civil Code section 47 subdivision (b) (sometimes
referred to as the "litigation privilege) which states: "A privileged publication or broadcast is one made:
...[] (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other
proceeding authorized by law. (Civ. Code, 47(b).) "If there is no dispute as to the operative facts, the
applicability of the litigation privilege is a question of law. Any doubt about whether the privilege applies
is resolved in favor of applying it." (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 (citation
omitted).)
"The privilege is designed to provide the utmost freedom of communication between citizens and public
authorities whose responsibility is to investigate wrongdoing. Accordingly, communications to an official
agency intended to induce the agency to initiate action are part of an 'official proceeding.' Thus it is well
settled that complaints to school authorities about a teacher or principal in the performance of his or her
official duties are privileged." (Lee v. Fick, supra, 135 Cal.App.4th at 96 (internal citations omitted).)
Plaintiff contends Civil Code section 47 does not apply because Defendant was not "petitioning School
officials for any redress." But that mischaracterizes many of the emails. It also ignores Plaintiff's own
complaint where he alleges that Defendant was "authoring multiple emails to parents, staff
administration and the Athletic Director with the clear intent to undermine [Plaintiff] in his position as a
coach," (10); that Defendant was "writing emails defaming [Plaintiff] and disseminating them to anyone
[Plaintiff] felt could negatively affect [Plaintiff's] job, [Plaintiff's] position in the community, [Plaintiff's]
coaching position and [Plaintiff's] income," (11); that Defendant "continued to circulate multiple emails
with the sole intent of ruining [Plaintiff's] reputation and to get [Plaintiff's] job," (15); and that
Defendant's "apparent motive was, and is to defame [Plaintiff] and to put false pressure on those in
authority to take [Plaintiff's] coaching job." (23.) Moreover, "[t]here is no requirement that a letter of
complaint expressly request an investigation, hearing or that the agency take any particular action." (Lee
v. Fick, supra, 135 Cal.App.4th at 97.)
Defendant's emails intended to induce the Conejo Unified School District through the members of its
Board and others to fire Plaintiff from his job as a coach. Apparently, that has not happened, "[b]ut the
privilege does not depend on what action, if any, the official agency takes on a complaint. The complaint
itself is part of the official proceedings."(Id. at 97.)
The fact that the emails were also sent to non-school officials does not strip them of the privilege. "In

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order to be effective in pressing their complaints to school authorities, parents must be free to
communicate with each other without fear of liability. Such communications between interested parties
are protected by the privilege." ((Ibid. citations omitted).) Defendant's emails were sent to interested
parties.
Plaintiff argues the privilege does not apply because he is not a "public employee." (Oppo. p.9.) No
authority is cited by Plaintiff to support that such a distinction makes any difference in whether a
communication is privileged and it does not make any difference. Whether Plaintiff is a paid employee,
receives a minimal stipend, or volunteers his time, he is still the boys' basketball coach at Westlake High
School and that is what is significant to whether the emails, which attempt to get him fired, arise from
and are connected with an official proceeding. Under both step one and two of the anti-SLAPP analysis,
the emails are part of an official proceeding.
"The litigation privilege [Civ. C. 47(b)] is absolute; it applies, if at all, regardless whether the
communication was made with malice or the intent to harm." (Kashian v. Harriman (2002) 98
Cal.App.4th 892, 913.) The privilege applies even if the statements "are, or are alleged to be, fraudulent,
perjurious, unethical, or even illegal." (Id. at 920.)
The emails are absolutely privileged under Civil Code section 47 subdivision (b). Therefore, there is no
need to determine whether Plaintiff has met his burden of presenting evidence that Defendant published
the emails with actual malice under the definition in New York Times v. Sullivan standard or malice as
defined under Civil Code section 47 subdivision (c). However, if the absolute privilege did not apply and,
therefore, Plaintiff had the burden to present evidence of malice, he has not met his burden.
Plaintiff argues that when Defendant sent his June 28, 2014, email (Exhibit E) "he could not have had a
good faith belief that his years long research onto [Plaintiff] 'crimes' were in fact crimes" (Oppo.
12:14-15) because Defendant did not speak to an IRS agent until July 2014. That is not evidence that
Defendant did not have "knowledge that the defamatory statement is false or a reckless disregard for the
truth." (Mullins v. Brando (1970) 13 Cal.App.3d 409, 42[the New York v. Sullivan standard].) It is also no
evidence "showing that the publication was motivated by hatred or ill will towards the plaintiff or... a
showing that the defendant lacked reasonable grounds for belief in the truth of the publication and
therefore acted in reckless disregard of the plaintiff's rights." (Sanborn v. Chronicle Pub. Co. (1976) 18
Cal.3d 406, 413 (internal quotations and citations omitted) [the Civ. Code 47(c) standard).) Plaintiff's
own declaration states he personally had not been charged or accused of violating child labor laws, and
that no government authority has contacted him regarding any child abuse at Westlake Sports Camp or
regarding abuse of Defendant's son. Again, this is not evidence to support that Defendant's statements
in his emails were made with malice. Plaintiff has the burden of proof on this issue and the fact that
Defendant "failed to submit any competent admissible evidence from a qualified expert that, based on
[Defendant's] analysis, [Plaintiff] would be, or could be accused of, or charged with crimes" is of no
moment. (Oppo. 13:13-15.)
For these reasons defendant's special motion to strike is granted.

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Notice to be given by the clerk.

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