Filed 1/31/24 Arax v. Thomas CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DON ARA ARAX,

Plaintiff and Respondent,

v.

KESHIA THOMAS et al.,

Defendants and Appellants.

F085518

(Super. Ct. No. 22CECG02449)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver 

Kapetan, Judge.

Bruce J. Berger Law Firm, Bruce J. Berger and Joshua D. Milton for Defendant 

and Appellant Keshia Thomas.

Whitney, Thompson & Jeffcoach, Mandy L. Jeffcoach, Kristi D. Marshall and 

Paul R. Gaus for Defendant and Appellant Fresno Unified School District.

Whelan Law Group, Brian D. Whelan and Joseph A. Stolz for Plaintiff and 

Respondent.

-ooOooDon Ara Arax coached high school football in the Fresno Unified School District 

(FUSD). Keshia Thomas was/is an elected member of the FUSD Board of Trustees. 
2.

During a media appearance, Thomas accused Arax of using a particular racial slur (“the 

N-word”) while speaking to her son during football practice. Arax denied the accusation 

and sued Thomas for defamation. FUSD was named as a defendant based on a theory of 

respondeat superior.

Thomas and FUSD filed special motions to strike the complaint pursuant to Code 

of Civil Procedure section 425.16, also known as the anti-SLAPP statute. “SLAPP” is an 

acronym for Strategic Lawsuit Against Public Participation. (Oasis West Realty, LLC v. 

Goldman (2011) 51 Cal.4th 811, 815, fn. 1.) Thomas and FUSD now appeal from orders 

denying their respective motions. We conclude the motions were appropriately denied.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2022, Arax filed a civil complaint alleging a cause of action for 

defamation against Thomas and FUSD. In October 2022, Thomas and FUSD filed 

separate anti-SLAPP motions. The motions were heard on November 17, 2022. The trial 

court later issued written orders partially granting and partially denying both motions.

Thomas and FUSD each filed timely notices of appeal.

Arax’s Allegations and Supporting Evidence

According to sworn declarations, Arax has been a teacher at Bullard High School 

since approximately April 2000 and, “[i]n that time period, ... also served as [Bullard’s] 

Varsity Football Head Coach.” Thomas, who was elected to the FUSD Board of Trustees 

in 2018, represents a geographic region within FUSD that includes Edison High School. 

Thomas does not represent the region in which Bullard High School is located.

Thomas’s “youngest son” attended Bullard High School from at least 2021 to 

2022. However, Thomas’s youngest son is not the person to whom she referred in the 

allegedly defamatory statements about Arax. The statements concerned her “middle 

son.”

Arax’s complaint and declarations allege Thomas developed “animosity” toward 

him during the summer of 2021, and her animosity was later “reignited and fueled” by an 
3.

incident involving her “youngest son” in December 2021. Those allegations concern the 

issue of malice and are detailed elsewhere in the opinion.

Thomas’s allegedly defamatory statements were preceded and ostensibly 

precipitated by an incident at Bullard High School on May 4, 2022. The complaint 

alleges a student was photographed wearing “what appeared to be a Ku Klux Klan hood. 

... Ultimately, another student posted the picture to social media[,] causing an uproar, 

public outcry, and rush to judgment.”

Two days later, on May 6, 2022, Thomas attended a morning staff meeting at 

Bullard High School. Arax contends Thomas’s presence at the meeting was “highly 

irregular.” He further contends that during the meeting, Thomas “accused ‘white’

Bullard High School coaches of using the ‘N-word’ on campus.” Thomas did not 

identify anyone by name. However, in light of subsequent events, Arax claims Thomas 

was making an implied accusation against him.

On May 9, 2022, Thomas attended a press conference with the FUSD 

superintendent and two other FUSD trustees. During her appearance, Arax alleges 

Thomas publicly “claimed FUSD had historically covered up and ignored past instances 

of racist behavior at Bullard High School and called for the creation of a special 

commission to investigate and recommend appropriate remediation measures.” Thomas 

also allegedly “stated that Bullard High School, and specifically certain members of its 

staff were racist against African American students.” Although Thomas did not identify 

any staff by name, Arax contends this was another implied accusation against him.

On May 17, 2022, Thomas appeared as a guest on “Unfiltered,” which is described 

in the record as a “public affairs program hosted by GV Wire publisher Darius Assemi 

[that is] live-streamed on Facebook.” Arax’s evidence includes promotional material 

showing the program is also known as “The Darius, Steve & Mike Show,” referring to 

Assemi and cohosts Steve Brandau (a member of the Fresno County Board of 

Supervisors) and Mike Karbassi (a member of the Fresno City Council). The 
4.

promotional material described the evening’s topic as “Bullard High and Racism in 

Fresno Unified.” It further advertised “Special Guests,” with a photograph of Thomas 

above her name and the title of “Fresno Unified Trustee.” Two additional “Special 

Guests” (the “Bullard High School PTA President” and a “Mother of [a] Bullard High 

School Student”) were depicted in the same manner.

The following exchange took place between Thomas and host Darius Assemi 

during Thomas’s appearance on the “Unfiltered” program:

Thomas: “‘Then my son, my middle son, goes to football practice, 

where he has Arax calling him [the N-word] and he decides 

he’s not playing for Bullard anymore. Ok. And he ends up 

playing at Edison.

Assemi: “‘Could you tell our audience ... you said Arax. Who is 

Arax?

Thomas: “‘Yeah. He’s the football coach at Bullard. You know ... 

so my son, when he was starting high school, my 23 year 

old, when he was starting high school he said “mom I am 

not going to play football for them because the coach is 

saying this to me, and I am not going ...” and this is before I 

became a trustee.’”

On the night of the “Unfiltered” broadcast, Arax was contacted by a GV Wire 

reporter for a response to Thomas’s accusation. Arax claims to have told the reporter it 

was “ridiculous and false.” Three days later, on May 20, 2022, GV Wire published a

written article by the same reporter under the headline, “Bullard Coach Calls Trustee a 

‘Liar’ on Racial Slur Accusation, Says ‘Investigate Me.’”

In the GV Wire article of May 20, 2022, Thomas’s allegedly defamatory 

statements were construed to mean her middle son had once been “a Bullard student and 

football player.” It is unclear from the record whether, or to what extent, this was based 

on the reporter’s own interpretation of Thomas’s story. However, the article claimed 

Thomas had made additional statements to the reporter regarding Arax’s denial of the 

accusation: “‘First and foremost I have no reason to lie,’ [Thomas] said in a text Friday 
5.

afternoon to GV Wire. ‘I’m sure my son and his friends who were on the team would be 

willing to make a statement seeing as they are graduates and he [i.e., Arax] is no longer a 

threat to their education.’”

Thomas was also quoted in the GV Wire article as saying Arax “is ‘completely 

unfit to be in this discussion [about racism] ... [and should] (refrain) from referring to 

[students] in a demeaning manner.”

Arax’s complaint alleges Thomas’s story is provably false because her middle son 

never attended Bullard High School. Therefore, he was never a member of Bullard’s 

football team. Arax has further denied ever calling any student the N-word, and he 

maintains Thomas’s story “was a fabrication and a lie.”

Thomas, in support of her anti-SLAPP motion, filed a declaration in which she 

attempted to explain the statements at issue:

“In or around Summer 2013, Mr. Arax invited my middle son ... to 

participate in a summer football camp. At the time [my middle son] was a 

student at Tenaya Middle School within FUSD and Mr. Arax was the head 

football coach at Bullard High School. Mr. Arax waived fees to participate 

in the camp and, even though [my middle son] would have likely gone to 

Bullard High School based on his attendance at Tenaya Middle School, I 

believe Mr. Arax invited [him] to the summer camp to recruit him to play 

football for Bullard High School.

“A few days after the start of the summer camp, [my middle son] 

told me Mr. Arax used the [N-word] during football practice in reference to 

Black players, including [him], and that he would not play football for Mr. 

Arax or Bullard High School because of Mr. Arax’s use of that slur. I 

believed my son when he told me Mr. Arax used that slur, and I still believe 

him to this day.”

In a sworn declaration responsive to Thomas’s motion, Arax said he had searched 

for and had not located any records verifying the statements regarding her son’s camp 

attendance or the waiver of fees. Arax further declared that he did not coach the “2013 

Summer Camp.” The camp was run by the head coach of Bullard High School’s 

freshman and junior varsity football teams, and by two African American assistant 
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coaches. Those three coaches provided supporting declarations attesting to their 

involvement in the camp, and all denied having knowledge of any coach using a racial 

slur toward any camp participants. The declarants further attested to having never heard 

Arax use the N-word.

Regarding the liability of FUSD, the complaint alleges Thomas “was acting as an 

agent of FUSD and within the course and scope of her agency as a FUSD agent and 

elected trustee when she defamed [Arax].” The complaint further alleges FUSD and 

Thomas “conspired to, and in fact, did negligently, recklessly, and intentionally cause 

excessive and unsolicited internal and external publications of defamation, of and 

concerning [Arax], to third persons and to the community.” FUSD is also said to have 

“authorized, ratified and approved” Thomas’s actions.

Thomas’s Arguments and Evidence

Thomas’s moving papers argued, in pertinent part, that she has a complete defense 

under Civil Code section 47, subdivision (a). Sometimes called the official duty 

privilege, the provision applies to any “publication or broadcast” made “[i]n the proper 

discharge of an official duty.” (Ibid.) The meaning of this language and the factual 

prerequisites for such immunity are the focus of our legal analysis herein.

In a supporting declaration, Thomas attested to her status as an FUSD trustee 

whose responsibilities include “policymaking and oversight of FUSD implementation of 

such policies.” Thomas alleged and declared she “was acting in her capacity as an 

elected FUSD [t]rustee at all relevant times alleged in the [c]omplaint.” She also claimed 

her allegedly defamatory statements were made while “speaking to a matter of public 

concern.”

Thomas also argued Arax is a “limited public figure” and must therefore establish 

the element of malice. She attested to believing in the truth of her accusations against 

Arax, and further argued her sworn declaration of such belief defeated Arax’s defamation 

claim as a matter of law.
7.

Thomas filed additional evidence with her reply brief, but the trial court declined 

to consider it due to untimeliness. We discuss the excluded evidence in other parts of the 

opinion.

FUSD’s Arguments and Evidence

FUSD’s motion relied, in pertinent part, on Government Code section 815.2. 

Under that statute, a public entity may be vicariously liable for the tortious conduct of an 

employee only if such conduct occurred “within the scope of [the tortfeasor’s] 

employment.” (Id., subd. (a).) The moving papers argued Thomas had acted “outside the 

scope of her employment” and in a “parental capacity” rather than her official capacity as 

an FUSD trustee. FUSD did not, however, proffer any evidence in support of those 

contentions.

As an alternative position, FUSD argued Arax is a “limited public figure” and 

must therefore show Thomas acted with malice. To support the first part of this 

argument, FUSD proffered three news articles published between 2013 and 2021 in 

which Arax had been quoted on topics concerning FUSD football programs. For the 

second part of the argument, FUSD basically repeated Thomas’s contention regarding the 

alleged sufficiency of her declaration to prove the absence of malice.

The Trial Court’s Rulings

Thomas and FUSD initially believed Arax was asserting multiple defamation 

claims within a single cause of action. When the motions were heard, his attorney 

clarified the cause of action was based on (1) Thomas’s accusation during the 

“Unfiltered” program on May 17, 2022; (2) the republication of that accusation on 

May 20, 2022, in the GV Wire written article; and (3) Thomas’s additional statements in 

the GV Wire article about Arax being “unfit.” The trial court determined the “unfit”

statements were nonactionable expressions of opinion. Both motions were therefore 

granted in part, i.e., only as to those nonactionable portions of the GV Wire article. (See 
8.

Baral v. Schnitt (2016) 1 Cal.5th 376, 393 [“an anti-SLAPP motion, like a conventional 

motion to strike, may be used to attack parts of a count as pleaded”].)

Arax was held to have otherwise established a prima facie defamation claim 

against both defendants. Thus, as to the cause of action itself and the overall complaint, 

the motions were denied. The trial court ruled there were questions of fact regarding the 

capacity in which Thomas had acted and whether her statements were privileged under 

Civil Code section 47, subdivision (a). The court partially relied on Lipman v. Brisbane 

Elementary Sch. Dist. (1961) 55 Cal.2d 224, which did not involve that statutory 

privilege but is analogous in other respects (see further discussion, post). The trial court 

also ruled there were questions of fact about Thomas’s “motivation for making the 

statements” and whether she had acted “outside the course and scope of the role of 

trustee.”

The trial court “decline[d] to designate [Arax] as a limited public figure based on 

the evidence and arguments submitted.” The court said the evidence, including the news 

articles proffered by FUSD, “does not demonstrate that [Arax] has injected himself or his 

views into public controversy ... in connection with the conversation about racism at 

Bullard High School and within the school district.” Because Arax was not shown to be 

a public figure, the trial court did not reach the issue of malice.

REQUESTS FOR JUDICIAL NOTICE

Arax, Thomas, and FUSD have all filed motions to have judicial notice taken of 

various material. Some of the requests concern new evidence. For the following reasons, 

each motion is hereby denied.

Applicable Law

“It is well recognized that the purpose of judicial notice is to expedite the 

production and introduction of otherwise admissible evidence.” (Mozzetti v. City of 

Brisbane (1977) 67 Cal.App.3d 565, 578.) The Evidence Code requires reviewing courts 

to take judicial notice of certain material (id., § 459, subd. (a)) and permits judicial notice 
9.

of certain other material (id., § 452). However, “[a]n appellate court may properly 

decline to take judicial notice under Evidence Code sections 452 and 459 of a matter 

which should have been presented to the trial court for its consideration in the first 

instance.” (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325–326.) “[A]s a general 

rule the court should not take such notice if, upon examination of the entire record, it 

appears that the matter has not been presented to and considered by the trial court in the 

first instance.” (People v. Preslie (1977) 70 Cal.App.3d 486, 493, italics added; accord, 

Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)

Appellate courts review the correctness of a ruling “‘as of the time of its rendition, 

upon a record of matters which were before the trial court for its consideration.’” (In re 

Zeth S. (2003) 31 Cal.4th 396, 405.) Therefore, “[d]ocuments not presented in the trial 

proceeding generally cannot be included as part of the record on appeal and must be 

disregarded on appeal as beyond the scope of review.” (Glassman v. Safeco Ins. Co. of 

America (2023) 90 Cal.App.5th 1281, 1307.) This is especially true where the evidence 

was previously available to the parties. (See In re Utz (1989) 48 Cal.3d 468, 481.) “The 

court’s power to accept new evidence on appeal should not be exercised when the 

appellant has failed to show good cause for the unavailability of the evidence in the trial 

court.” (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 

12 Cal.App.4th 74, 87.) “Further, even if a reviewing court takes judicial notice of 

documents, it is not for the truth of matters asserted therein.” (Glassman, at p. 1307.)

Arax’s Motions

Arax requests judicial notice of the opening briefs filed by Thomas and FUSD in 

the present appeal. Judicial notice of those briefs is unnecessary, as they are already 

properly before this court. (See, e.g., Central Delta Water Agency v. Department of 

Water Resources (2021) 69 Cal.App.5th 170, 189, fn. 4.) Arax’s motions are therefore 

denied.
10.

Thomas’s Motion

Thomas claims the trial court made a prejudicial error by rejecting various 

evidence submitted with her reply brief. She asks us to take judicial notice of the 

evidence, which consists of official minutes from FUSD board meetings held in October 

2021 and May 2022, and two GV Wire news articles published in June 2022. Judicial 

notice of these items is unnecessary since they were filed with the trial court and are 

already part of the record on appeal. (E.g., Davis v. Southern California Edison Co.

(2015) 236 Cal.App.4th 619, 632, fn. 11 [denying as unnecessary a request for judicial 

notice of documents “that were before the trial court and ... included in the joint 

appendix”].)

Thomas also requests judicial notice of material she concedes was never presented 

to the trial court. The new evidence, introduced for the first time on appeal, is a GV Wire 

news article dated May 6, 2022, i.e., two days after the so-called “KKK photo” incident 

at Bullard High School. The article claims Arax gave a statement to a GV Wire reporter 

in which he allegedly “defended the student in the controversial picture [by] saying there 

were no intended racial overtones to the image.” Arax is quoted in the article as saying, 

“‘He was doing a ninja dance, whatever that is.’”

1

Thomas is not merely asking for judicial notice of the topic and publication date of 

the news article. She is relying on the truth of matters asserted therein, namely the 

contention Arax made statements to the press regarding the photograph controversy. 

Thomas argues this shows Arax “injected himself into [a] controversy” related to her 

allegedly defamatory statements and thus became a “limited public figure” for purposes 

of the lawsuit. Thomas also claims the evidence “definitively negates the trial court’s 

1The article includes the photograph in question and explains the student was not actually 

wearing a “KKK hood.” The image depicts a person with a whitish, semitransparent garment

(similar to a stocking) pulled over the head and face. The picture was taken as someone behind

the individual was holding a slackened portion of the garment upward, thereby causing it to have 

a triangular shape.
11.

determination that Arax did not inject himself into the public controversy prior to 

Thomas’ allegedly defamatory statements.”

We have already discussed the rule against judicially noticing a document for the 

truth of its contents. “The truth of the content of [newspaper] articles is not a proper 

matter for judicial notice.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 

1141, fn. 6; accord, Voris v. Lampert (2019) 7 Cal.5th 1141, 1147, fn. 5.) Furthermore, 

“‘[r]eviewing courts generally do not take judicial notice of evidence not presented to the 

trial court’ absent exceptional circumstances.” (Haworth v. Superior Court (2010) 50 

Cal.4th 372, 379, fn. 2.) Thomas makes no effort to explain why she did not proffer the 

evidence in the proceedings below, nor does she allege exceptional circumstances. Her 

motion is therefore denied.

Although Thomas claims the evidence conclusively establishes her position on the 

public figure dispute (a contention we decline to address), she suffers no legal detriment 

from our ruling. Whether a defamation plaintiff is a public or private figure “is in the 

first instance a question of law for the trial court to decide.” (Mosesian v. McClatchy 

Newspapers (1991) 233 Cal.App.3d 1685, 1694.) Here, the trial court merely “decline[d] 

to designate [Arax] as a limited public figure based on the evidence and arguments 

submitted with [Thomas’s] motion.” (Italics added.) Because the parties’ anti-SLAPP 

evidence did not include the GV Wire article of May 6, 2022, neither the trial court’s 

ruling nor the disposition on appeal prevents Thomas from relying on the article in later 

stages of the case. The denial of an anti-SLAPP motion does not preclude, for example, a 

summary adjudication motion based upon “additional or different evidence that would, as 

a matter of law, conclusively negate plaintiff’s prima facie case.” (Bergman v. Drum

(2005) 129 Cal.App.4th 11, 18, italics omitted; see Code Civ. Proc., § 425.16, subd.

(b)(3).)

Even if Thomas could have established Arax’s status as a public figure, her motion 

would have been denied absent a showing of Arax’s inability to prove malice. As we 
12.

will discuss, the evidence before the trial court did not show the absence of malice as a 

matter of law.

FUSD’s Motion

FUSD requests judicial notice of three of its Board of Trustees’ bylaws, which 

FUSD labels as “Bylaw 9000,” “Bylaw 9005,” and “Bylaw 9010.”

Bylaw 9000

Bylaw 9000 says the FUSD Board of Trustees is “elected by the community to 

provide leadership and citizen oversight of the district’s schools.” The bylaw further 

reflects various policymaking functions of the board and its members. In the proceedings 

below, defendant Thomas made an unopposed request for judicial notice of Bylaw 9000.

“Because the record contains no indication the request was denied, we presume that it 

was granted.” (Casey v. Hill (2022) 79 Cal.App.5th 937, 975, fn. 16; accord, Aaronoff v. 

Martinez-Senftner (2006) 136 Cal.App.4th 910, 918–919, citing Evid. Code, §§ 453, 

456.) Given those circumstances, and because it is already part of the appellate record, 

judicial notice of Bylaw 9000 is unnecessary. (See, e.g., Physicians Committee for 

Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 

182, fn. 2; Davis v. Southern California Edison Co., supra, 236 Cal.App.4th at p. 632, fn. 

11.)

We note FUSD is requesting judicial notice of the current version of Bylaw 9000, 

which was revised in May 2023. The bylaws are relevant to the litigation only as they 

existed at the time of the subject events, i.e., in May 2022. FUSD’s request is denied for 

this reason as well. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 

295, fn. 21 [refusing to take judicial notice of irrelevant matter]; Ross v. Seyfarth Shaw 

LLP (2023) 96 Cal.App.5th 722, 745–746 [same].)
13.

Bylaw 9005

Bylaw 9005 lists multiple sets of enumerated “Governance Standards” for FUSD’s 

Board of Trustees. In the proceedings below, Arax requested judicial notice of this bylaw 

and the trial court expressly granted his request. Because the trial court judicially noticed 

Bylaw 9005 as it existed in May 2022, and a copy of that version is part of the record on 

appeal, judicial notice is unnecessary. (See Physicians Committee for Responsible 

Medicine v. Los Angeles Unified School Dist., supra, 43 Cal.App.5th at p. 182, fn. 2; 

Davis v. Southern California Edison Co., supra, 236 Cal.App.4th at p. 632, fn. 11.)

FUSD is requesting judicial notice of the current version of Bylaw 9005, which 

was revised in March 2023. Again, the relevant version is the one in effect as of May 

2022. The request is therefore denied. (See Ross v. Seyfarth Shaw LLP, supra, 96 

Cal.App.5th at pp. 745–746.)

Bylaw 9010

Bylaw 9010 (last revised in 2016) sets forth rules and guidelines for public 

statements by FUSD board members. For example, “Board members are expected to 

respect the authority of the Board to choose its representatives to communicate its 

positions and to abide by established protocols. [¶] All public statements authorized to be 

made on behalf of the Governing Board shall be made by the Board president or, if 

appropriate, by the Superintendent or designee at the direction of the Board president. 

No individual Board member shall make public statements in the name of the Board.”

FUSD seeks judicial notice of Bylaw 9010 to support the argument Thomas was 

not acting in the course and scope of her employment when she made the allegedly 

defamatory statements. FUSD concedes this evidence was never presented to the trial 

court. We note FUSD did not rely upon any bylaws in its moving papers. It was not 

until the motion hearing, after the trial court had tentatively ruled to deny its motion, that 

FUSD attempted to rely on parts of Bylaw 9005 (which Arax had cursorily mentioned in 

his opposition to Thomas’s motion). The trial court considered FUSD’s belated argument 
14.

and rejected it, concluding that “[w]ithout additional context and evidence[,] it is unclear 

how [Bylaw 9005] may relate to the media appearance where the statements were made.”

To summarize, Bylaw 9010 was not presented to the trial court. It was not even 

mentioned until FUSD’s briefing on appeal. FUSD offers no explanation for why the 

evidence was not discussed or proffered below, nor does FUSD allege exceptional 

circumstances. Consistent with the rules disfavoring new evidence on appeal, 

“[a]ppellate courts are loath to reverse a [ruling] on grounds that the opposing party did 

not have an opportunity to argue and the trial court did not have an opportunity to 

consider.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 

Cal.App.4th 168, 178.)

FUSD makes a “judicial economy” argument, which we do not find persuasive. 

As we discuss post, violations of an employer’s policies and rules is not necessarily 

dispositive of the “course and scope” issue. There are also questions of fact regarding 

allegations in the complaint that FUSD “authorized, ratified and approved” Thomas’s 

actions. Our judicial notice ruling does not preclude FUSD from relying on Bylaw 9010 

to support a motion for summary judgment (see Bergman v. Drum, supra, 129 

Cal.App.4th at p. 18), but the anti-SLAPP evidence does not conclusively show FUSD 

can defeat Arax’s claim as a matter of law.

DISCUSSION

I. Defamation Law

“Defamation is an invasion of the interest in reputation. The tort involves the 

intentional publication of a statement of fact that is false, unprivileged, and has a natural 

tendency to injure or which causes special damage. [Citations.] Publication means 

communication to some third person who understands the defamatory meaning of the 

statement and its application to the person to whom reference is made.” (Smith v. 
15.

Maldonado (1999) 72 Cal.App.4th 637, 645, fn. omitted.) Dissemination to “the ‘public’

at large” is actionable but not required. (Ibid.)

Defamation occurs in the form of libel or slander. (Civ. Code, § 44.) “Libel is a 

false and unprivileged publication by writing, ... 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.” (Id., 

§ 45.) Slander is oral defamation. (Id., § 46.) The elements of falsity, lack of privilege, 

publication, and reputational harm are common to both forms. “The original slanderer 

may be liable for the repetition of the slander by a third person, if the slanderer had 

reason to expect such repetition.” (Ringler Associates Inc. v. Maryland Casualty Co.

(2000) 80 Cal.App.4th 1165, 1180.)

In general, defamation plaintiffs are not required to prove the elements of falsity 

and lack of privilege, or to show the defendant acted with malice. (ZL Technologies, Inc. 

v. Does 1-7 (2017) 13 Cal.App.5th 603, 631; see Beroiz v. Wahl (2000) 84 Cal.App.4th 

485, 492 [“Privilege is an affirmative defense to a claim of defamation”].) It is ordinarily 

the defendant’s burden “to ‘justify’ or show the truth of the statements” in question. 

(Ringler Associates Inc. v. Maryland Casualty Co., supra, 80 Cal.App.4th at p. 1180.) 

“However, where the communication involves a matter of public concern, the plaintiff 

does bear the burden of pleading and proving falsity.” (Industrial Waste & Debris Box 

Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1156.)

If the alleged defamation involves a matter of public concern and the plaintiff is 

seeking presumed damages or punitive damages, the plaintiff must prove falsity and 

malice. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747.) “In this context, 

actual malice means that the defamatory statement was made ‘with knowledge that it was 

false or with reckless disregard of whether it was false or not.’” (Khawar v. Globe 

Internat., Inc. (1998) 19 Cal.4th 254, 275, quoting New York Times Co. v. Sullivan (1964) 

376 U.S. 254, 280.) If the plaintiff is deemed to be a “public figure,” malice becomes an 
16.

essential element of the defamation claim. (Vegod Corp. v. American Broadcasting 

Companies, Inc. (1979) 25 Cal.3d 763, 766; Franklin v. Benevolent etc. Order of Elks

(1979) 97 Cal.App.3d 915, 922.)

There are two types of public figures. “The first is the ‘all purpose’ public figure 

who has ‘achiev[ed] such pervasive fame or notoriety that he becomes a public figure for 

all purposes and in all contexts.’ The second category is that of the ‘limited purpose’ or 

‘vortex’ public figure, an individual who ‘voluntarily injects himself or is drawn into a 

particular public controversy and thereby becomes a public figure for a limited range of 

issues.’” (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253.) A 

limited purpose public figure “loses certain protection for his reputation only to the extent 

that the allegedly defamatory communication relates to his role in a public controversy.”

(Id. at p. 254.)

II. The Anti-SLAPP Framework

The anti-SLAPP statute is designed to deter and quickly dispose of frivolous 

litigation arising from the exercise of a constitutional right of petition or free speech. 

(Flatley v. Mauro (2006) 39 Cal.4th 299, 311–312.) A defendant may respond to such 

litigation by filing a special motion to strike pursuant to Code of Civil Procedure section 

425.16, subdivision (b), within 60 days of service of the complaint. (Id., subd. (f).) This 

allows the trial court to evaluate the lawsuit at an early stage in a manner akin to 

summary judgment. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 

192.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant 

must establish that the challenged claim arises from [protected free speech or petitioning 

activity].” (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) “If the defendant makes the 

required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim 
17.

by establishing a probability of success.” (Ibid.) “But the plaintiff’s second-step burden 

is a limited one.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.)

“Only a ‘“minimum level of legal sufficiency and triability”’ is needed to satisfy 

the second prong of the anti-SLAPP statute.” (Castleman v. Sagaser (2013) 216 

Cal.App.4th 481, 490.) The trial court “does not weigh evidence or resolve conflicting 

factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient 

claim and made a prima facie factual showing sufficient to sustain a favorable judgment. 

It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to 

determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with 

the requisite minimal merit may proceed.’” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 

384–385.)

“When evaluating an affirmative defense in connection with the second prong of 

the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like 

rubric, generally should consider whether the defendant’s evidence in support of an 

affirmative defense is sufficient, and if so, whether the plaintiff has introduced contrary 

evidence, which, if accepted, would negate the defense.” (Bently Reserve LP v. 

Papaliolios (2013) 218 Cal.App.4th 418, 434; see Laker v. Board of Trustees of 

California State University (2019) 32 Cal.App.5th 745, 769 [“defendants bear the burden 

of proof on any affirmative defense”].) “If the defendant’s evidence does not

demonstrate that plaintiff cannot prevail as a matter of law,” the only remaining question 

is “whether evidence favoring the plaintiff, standing alone, would sustain a judgment in 

his or her favor.” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84, 

italics added.)

The parties dispute where the burden lies on the issue of whether Thomas’s 

statements are privileged. While the absence of privilege is an element of libel and 

slander, it has long been held that privilege is nevertheless an affirmative defense to both 

forms of defamation. (Locke v. Mitchell (1936) 7 Cal.2d 599, 602; Beroiz v. Wahl, supra,
18.

84 Cal.App.4th at p. 492.) Although the anti-SLAPP statute “places on the plaintiff the 

burden of substantiating its claims, a defendant that advances an affirmative defense to 

such claims properly bears the burden of proof on the defense.” (Peregrine Funding, Inc. 

v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676.) Thus,

“[d]uring the second prong of a court’s anti-SLAPP analysis, a defendant bears the 

burden of proving a privilege’s applicability.” (Neurelis, Inc. v. Aquestive Therapeutics, 

Inc. (2021) 71 Cal.App.5th 769, 794.)

“What is important is that, regardless of the burden of proof, the court must 

determine whether plaintiff can establish a prima facie case of prevailing, or whether 

defendant has defeated plaintiff’s evidence as a matter of law.” (Dickinson v. Cosby

(2017) 17 Cal.App.5th 655, 683.) If the evidence before the court does not establish the 

applicability of a privilege as a matter of law, an anti-SLAPP movant cannot prevail on 

the argument that a defamatory statement was privileged.

III. Standard of Review

The denial of an anti-SLAPP motion is immediately appealable. (Code Civ. Proc., 

§§ 425.16, subd. (i), 904.1, subd. (a)(13).) The standard of review is de novo. (Park v. 

Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) We 

engage “in the same two-step process as the trial court to determine if the parties have 

satisfied their respective burdens.” (Castleman v. Sagaser, supra, 216 Cal.App.4th at p. 

490.) All evidentiary conflicts and competing inferences are resolved in favor of the 

plaintiff, i.e., Arax. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 795.)

IV. Civil Code Section 47, Subdivision (a)

The main issue on appeal concerns Civil Code section 47, subdivision (a) 

(henceforth “section 47(a)”). If Thomas’s statements are privileged, her affirmative 

defense inures to the benefit of FUSD and both are entitled to judgment as a matter of 

law. (See Gov. Code, § 815.2, subd. (b).) Arax and Thomas generally agree on the 
19.

requirements of section 47(a). However, because of certain arguments by FUSD, we 

provide a more thorough discussion of the law than would otherwise be necessary.

In 1872, when Civil Code section 47 was enacted, “defamation was subject to 

strict liability, that is, liability without fault as to truth or falsity.” (Brown v. Kelly 

Broadcasting Co., supra, 48 Cal.3d at p. 726.) “To ameliorate the harshness of the strictliability standard, certain privileges and defenses developed in the common law.” (Id. at 

p. 727.) There are two types of privileges for communications: “‘An “absolute” 

privilege excludes liability for a publication notwithstanding that it is made with actual 

malice, whereas a “qualified” or “conditional” privilege does not protect a defendant who 

has acted maliciously.’” (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 

709, 718.)

Apart from being renumbered in 1991 (Stats. 1990, ch. 1491, § 1), the text of 

section 47(a) has been the same for over 150 years: “A privileged publication or 

broadcast is one made: [¶] (a) In the proper discharge of an official duty.” The 

California Supreme Court first interpreted this language in Saroyan v. Burkett (1962) 57 

Cal.2d 706 (Saroyan). The Saroyan defendant was a state official (the Superintendent of 

Banks) who had been sued for defamation. (Id. at p. 707.) The defamatory statements 

were made while the defendant “was acting in the exercise of an executive function” and 

defending “the policy of his department.” (Id. at p. 710.) “[H]is statements were related 

to the defense of that policy.” (Id. at pp. 710–711.)

The issue in Saroyan was “whether officials in discharging their duties have an 

absolute privilege [and], if so, to what extent.” (Saroyan, supra, 57 Cal.2d at pp. 708–

709.) The California Supreme Court determined the section 47(a) privilege is absolute, 

then addressed the question of “which executive officials have an absolute privilege”

with respect to defamation. (Id. at p. 710.) The court ultimately adopted “the rule 

granting an absolute privilege to state officials corresponding in rank to federal cabinet 

members” as set forth in section 591 of the Restatement of Torts. (Saroyan, at p. 710.) 
20.

Such officials are “‘absolutely privileged to publish false and defamatory matter of 

another in the exercise of an executive function, if the matter has some relation to the 

executive proceeding in which the officer is acting.’” (Ibid., quoting Rest., Torts, § 591.)

By the mid-1970’s, it was considered settled “that the absolute privilege under 

[section 47(a)] is extended only to high ranking federal and state officials such as the 

President of the United States, governors of the states and territories, the members of the 

President’s cabinet, heads of federal agencies, and comparable state officers.” (Frisk v. 

Merrihew (1974) 42 Cal.App.3d 319, 323.) In Frisk, the appellate court summarily 

rejected the privilege arguments of a school district’s superintendent and secretary. (Id. 

at pp. 322–323.) The opinion holds, “A school superintendent or secretary of a school 

board is clearly outside the above-defined cabinet level state officials.” (Id. at p. 323.)

The California Supreme Court revisited the issue in Sanborn v. Chronicle 

Publishing Co. (1976) 18 Cal.3d 406 (Sanborn). The opinion acknowledged “that the 

courts of this state have thus far extended the protections of [section 47(a)] only to highranking state and federal officials.” (Id. at p. 412.) The court also said, “It has been 

noted by recognized authorities that the purpose of the so-called absolute ‘official duty’

privilege is to insure efficiency in government by encouraging policy-making officials to 

exercise their best judgment in the performance of their duties free from fear of general 

tort liability.” (Id. at p. 413.)

In Sanborn, the Clerk of the City and County of San Francisco (the clerk) had 

defamed the plaintiff while acting “within the scope of his authority,” i.e., while 

“issu[ing] statements to the press and [giving] interviews regarding the operation of the 

clerk’s office.” (Sanborn, supra, 18 Cal.3d at p. 412.) The clerk argued his statements 

were privileged under section 47(a), but the high court refrained from expressly deciding 

whether the privilege is available to lower ranking officials. The court held that because 

the clerk “was not exercising policy-making functions when he defamed plaintiff,” he 

was “not protected” by section 47(a). (Sanborn, at p. 413.)
21.

The Sanborn court analyzed the section 47(a) claim together with a claim of 

immunity under Government Code section 820.2, doing so in a manner indicating the 

analysis for both was the same. (See Sanborn, supra, 18 Cal.3d at pp. 413 [stating the 

reason for denying privilege claim is “discuss[ed] below in greater detail”], 414–415 

[discussing Gov. Code, § 820.2].) The latter statute immunizes public employees for

discretionary decisions “whether or not such discretion be abused.” (Gov. Code, 

§ 820.2.) But the immunity applies only “with respect to ‘basic policy decisions,’ or 

activity which may be characterized as the ‘planning’ rather than the ‘operational’ level 

of decision making.” (Sanborn, at p. 415.) Therefore, the party claiming discretionary 

immunity must show “‘that such a policy decision, consciously balancing risks and 

advantages, took place.’” (Ibid.)

While it was “arguable that [the clerk] may have had discretion to discuss [matters 

concerning the plaintiff] with the press,” the Sanborn court held the decision to grant a 

media interview was not “in the nature of a ‘basic policy decision’ made at the ‘planning’

stage of City’s operations.” (Sanborn, supra, 18 Cal.3d at p. 415.) “A governmental 

officer’s discussions with the public or press regarding the functioning of his office would 

seem, instead, to fall within the category of those routine, ministerial duties incident to 

the normal operations of that office.” (Ibid., italics added.)

In Royer v. Steinberg (1979) 90 Cal.App.3d 490 (Royer), the First Appellate 

District, Division Four, interpreted Sanborn as tacitly holding the section 47(a) privilege 

is available “to all state and local officials who engage in the policy-making process.”

(Royer, at p. 501.) But for lower ranking officials, it is limited to statements made “(a) 

while exercising policy-making functions, and (b) within the scope of [their] official 

duties.” (Ibid.) Subsequent appellate decisions have agreed with Royer. (E.g., Neary v. 

Regents of University of California (1986) 185 Cal.App.3d 1136, 1141–1142 (Neary); 

H & M Associates v. City of El Centro (1980) 109 Cal.App.3d 399, 408.) In Neary, for 

example, the appellate court cited Sanborn and Royer in noting, “The official duty 
22.

privilege has been extended to lower level state or local officials so long as the 

publication was made while the official was exercising his policymaking function and 

was acting within the scope of his official duties.” (Neary, at p. 1141.)

The Neary opinion correctly observes that in Sanborn, “the California Supreme 

Court discussed when an official is engaged in exercising his policymaking functions by 

reference to cases construing immunity for discretionary acts under Government Code 

section 820.2.” (Neary, supra, 185 Cal.App.3d at p. 1142.) Accordingly, Neary holds 

that to be engaged in a policymaking function for purposes of section 47(a), “the official 

must reach a basic policy decision, as distinct from an operational decision, after 

balancing risks and advantages.” (Neary, at p. 1142, citing Sanborn, supra, 18 Cal.3d at 

p. 415.) Pursuant to this holding, the Neary court reversed a summary judgment ruling 

due to triable issues regarding whether the defendant’s allegedly defamatory actions 

occurred in the exercise of a policymaking function. (Neary, at p. 1143.)

Although FUSD does not criticize Royer in its opening brief and even purports to 

rely upon it, FUSD’s reply brief challenges the holdings of Royer and Neary. In the 

reply, FUSD contends Neary (and by necessary implication Royer as well) “appears out 

of line” with other appellate decisions. FUSD specifically relies on Copp v. Paxton

(1996) 45 Cal.App.4th 829 (Copp).

In Copp, the First Appellate District, Division One, proposed and endorsed a 

broader application of section 47(a) to lower ranking officials than permitted by Royer. 

The relevant portion of Copp reads as follows:

“The Royer decision states that the privilege applies only to 

communications made ‘while exercising policy-making functions.’ 

[Citation.] Similar language is found in [Sanborn], supra, 18 Cal.3d at 

page 413, Kilgore v. Younger [(1982)] 30 Cal.3d [770,] 781, and [Neary], 

supra, 185 Cal.App.3d at page 1143. The Saroyan decision, however, 

speaks more broadly of acts ‘in the exercise of an executive function ....’ 

[Citation.] This formulation better reflects the standard in Barr v. Matteo

[(1959)] 360 U.S. 564[,] which asks whether the communication ‘was an 
23.

appropriate exercise of the discretion which an officer of that rank must 

possess if the public service is to function effectively.’ [Citation.] It is not 

necessarily inconsistent with language referring to the ‘exercise of policymaking functions’ but calls for a broad interpretation of this language to 

encompass all discretionary acts essential to the proper exercise of an 

executive function. We regard the language of the Saroyan decision as best 

defining the parameters of the privilege.” (Copp, supra, 45 Cal.App.4th at 

pp. 843–844.)

Whatever the Copp standard is, the reliance upon Saroyan and Barr v. Mateo, 

supra, 360 U.S. 564 (Barr) does not withstand scrutiny. First, Copp erroneously 

characterizes Barr as the “leading decision” on the subject. (Copp, supra, 45 

Cal.App.4th at p. 841.) Decided in 1959, Barr is a plurality decision by the United States 

Supreme Court on a question of federal common law. The issue was whether an absolute 

privilege protecting executive officials from defamation claims, previously recognized 

for officers of cabinet rank, should be available to other federal officers. An extension of 

the privilege was held warranted because the privilege is “designed to aid in the effective 

functioning of government,” and important governmental functions do not lose their 

importance “simply because they are exercised by officers of lower rank in the executive 

hierarchy.” (Barr, supra, at p. 573.)

The Barr decision did not extend the federal privilege to all lower ranking 

officials. It suggested a case-by-case test based on factors such as “the duties with which 

the particular officer sought to be made to respond in damages is entrusted” and “the 

relation of the act complained of to ‘matters committed by law to his control or 

supervision.’” (Barr, supra, 360 U.S. at p. 573 (plur. opn. of Harlan, J.); see id. at p. 578

(dis. opn. of Warren, C.J.) [criticizing plurality for “set[ting] up a vague standard under 

which no government employee can tell with any certainty whether he will receive 

absolute immunity for his acts”].) The Barr plurality also said, “[T]he occasions upon 

which the acts of the head of an executive department will be protected by the privilege 

are doubtless far broader than in the case of an officer with less sweeping functions. But 
24.

that is because the higher the post, the broader the range of responsibilities and duties, 

and the wider the scope of discretion, it entails.” (Barr, at p. 573 (plur. opn. of Harlan, J.)

Moreover, the Barr decision was later supplanted by Westfall v. Erwin (1988) 484 

U.S. 292 (Westfall). The issue in Westfall was whether federal executive branch officials 

“are absolutely immune from liability under state tort law for conduct within the scope of 

their employment without regard to whether the challenged conduct was discretionary in 

nature.” (Westfall, supra, 484 U.S. at p. 293.) The United States Supreme Court 

unanimously held such immunity is not available “unless the challenged conduct is 

within the outer perimeter of an official’s duties and is discretionary in nature.” (Id. at p. 

300, italics added.) It is not enough to merely show the person was “acting within the 

scope of their official duties.” (Id. at p. 299.) The court declined to articulate “the level 

of discretion required before immunity may attach,” but it made clear the threshold is 

somewhere beyond “‘minimal discretion.’” (Id. at pp. 299, 298.) “Conduct by federal 

officials will often involve the exercise of a modicum of choice and yet be largely 

unaffected by the prospect of tort liability, making the provision of absolute immunity 

unnecessary and unwise.”

2

(Westfall, at p. 298.)

Second, Copp’s abstract reliance upon Saroyan makes little sense considering 

Saroyan was decided after Barr and before Sanborn. The Saroyan court could have 

relied on Barr to deem section 47(a) applicable to all state and local officials, but instead 

it followed the Restatement of Torts (and federal cases other than Barr) and restricted the 

2The Westfall decision was superseded by statute as stated in United States v. Smith

(1991) 499 U.S. 160, 163. Federal statutory law now “accords federal employees absolute 

immunity from common-law tort claims arising out of acts they undertake in the course of their 

official duties.” (Osborn v. Haley (2007) 549 U.S. 225, 229, citing 28 U.S.C. § 2679(b)(1).) 

However, “Westfall remains the [federal] common law rule.” (Beebe v. Washington Metro. Area 

Transit (D.C. Cir. 1997) 129 F.3d 1283, 1289; accord, Midland Psychiatric Associates, Inc. v. 

U.S. (8th Cir. 1998) 145 F.3d 1000, 1005 [“It is well established that Westfall still articulates the 

more restrictive federal common-law rule limiting official immunity to discretionary conduct”].) 

The point being that when the Copp opinion was issued in 1996, Barr was not the “leading 

decision” in this area of law. (Copp, supra, 45 Cal.App.4th at p. 841.)
25.

privilege to “state officials corresponding in rank to federal cabinet members.” (Saroyan, 

supra, 57 Cal.2d at p. 710.) Missing from Copp is an explanation of how the standard 

applicable to lower ranking officials is to be gleaned from an opinion holding such 

persons are not entitled to the privilege. And while Copp speaks of the need to protect 

“all discretionary acts essential to the proper exercise of an executive function” (Copp, 

supra, 45 Cal.App.4th at p. 844), it fails to recognize that in the context of government 

immunity, “discretionary acts” are synonymous with “policy decisions.” (Lopez v. 

Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 793.) “The scope of the 

discretionary act immunity ‘should be no greater than is required to give legislative and 

executive policymakers sufficient breathing space in which to perform their vital 

policymaking functions.’” (Barner v. Leeds (2000) 24 Cal.4th 676, 685.)

If the California Supreme Court had wanted to apply the broad Saroyan standard 

to all state and local officials, it would have done so in Sanborn. The Sanborn opinion 

acknowledges Saroyan and Barr, referencing the latter case in a “but see” citation and 

parenthetically emphasizing Barr involved “federal executive officers.” (Sanborn, supra, 

18 Cal.3d at pp. 412–413.) The Sanborn court relied not on those cases, but upon 

Johnson v. State of California (1968) 69 Cal.2d 782—a landmark decision on the 

meaning of “discretionary” conduct for purposes of governmental immunity. (See 

Johnson, at pp. 793–794.) Quoting from Johnson, the high court declared “that 

‘[i]mmunity for “discretionary” activities serves no purpose except to assure that courts 

refuse to pass judgment [on] policy decisions in the province of coordinate branches of 

government.’” (Sanborn, at p. 415, italics added.) The key consideration, therefore, was 

whether the defendant had been “exercising policy-making functions when he defamed 

plaintiff.” (Sanborn, at p. 413.)

The Copp decision is often cited for its analysis of the distinction between public 

and private figures, but less so with regard to section 47(a). One of the few published 

decisions to fully endorse Copp’s section 47(a) holding is Morrow v. Los Angeles Unified 
26.

School Dist. (2007) 149 Cal.App.4th 1424, which we discuss, post. But even in Morrow, 

the appellate court considered whether the statements at issue were “[related or] unrelated 

to a legitimate policymaking function.” (Morrow, at pp. 1442–1443.)

In summary, the California Supreme Court has never held the official duty 

privilege shields local public officials from defamation liability. Assuming it would 

conclude such officials may invoke section 47(a), the Sanborn decision strongly indicates 

the privilege would be limited as stated in Royer and Neary. In other words, protection 

would be “extended to lower level state or local officials so long as the [defamation 

occurred] while the official was exercising his [or her] policymaking function and was 

acting within the scope of his [or her] official duties.” (Neary, supra, 185 Cal.App.3d at 

p. 1141.) Policymaking functions involve discretionary decisions, so the policymaking 

requirement is “closely related to the inquiry into whether an official was acting at a 

planning, as opposed to an operational, level under [Government Code section] 820.2.”

(McQuirk v. Donnelley (9th Cir. 1999) 189 F.3d 793, 801.) Thus, “actions found to be 

operational for purposes of [Government Code section] 820.2 cannot constitute 

statements made in the exercise of a policy-making function for purposes of [section] 

47(a).” (Ibid.; see Sanborn, supra, 18 Cal.3d. at pp. 412–415.)

V. The Lipman Case

The trial court gave weight to Lipman v. Brisbane Elementary Sch. Dist., supra, 55 

Cal.2d 224, and the parties discuss Lipman in their briefing. However, Lipman was 

decided before Saroyan and years prior to any case considering the application of section 

47(a) to local government officials. Because section 47(a) is not mentioned in the 

opinion, the value of Lipman is somewhat limited. We also note Lipman was decided 

prior to the existence of what is now known as the Government Claims Act (Gov. Code, 

§ 810 et seq.). “Since then, the Legislature enacted a comprehensive statutory scheme 

that wipes the slate clean of common law liabilities and immunities and replaces them 
27.

with statutory provisions specifying the extent of [governmental] liability or immunity.”

(Leon v. County of Riverside (2023) 14 Cal.5th 910, 928.)

In Lipman, a school superintendent sued a school district and trustees of its 

governing board for defamation and contractual interference. (Lipman v. Brisbane 

Elementary Sch. Dist., supra, 55 Cal.2d at pp. 228, 232.) The appeal was taken from an 

order sustaining a demurrer without leave to amend. The opinion summarizes the 

underlying allegations as to the school district:

“It is alleged in substance against the district that the three trustees, 

constituting a majority of the board and acting within the scope of their 

official duties, maliciously engaged in a course of conduct for the purpose 

of discrediting plaintiff’s reputation and forcing her out of her position. 

The asserted conduct of the trustees consisted primarily of disparaging 

statements made by them concerning plaintiff to various persons including 

district employees attending secret meetings, newspaper reporters and 

members of the public ....” (Id. at p. 228.)

The California Supreme Court upheld the judgment for the school district: “The 

district is immune from tort liability for the alleged acts of the trustees within the scope of 

their authority, and familiar principles of agency preclude its liability for acts outside the 

scope of their authority. Accordingly, the complaint does not state a cause of action in 

tort against the district.” (Lipman v. Brisbane Elementary Sch. Dist., supra, 55 Cal.2d at 

p. 230.) The quoted language refers to common law principles now codified in the 

Government Claims Act. (See, e.g., Gov. Code, §§ 815, 815.2, 820.2.) The school 

district’s immunity for conduct within the trustees’ scope of authority was based on the 

“discretionary” nature of that conduct. (Lipman, at pp. 229–230, 233; see Gov. Code 

§ 820.2.)

The judgment was partially reversed as to the individual trustees. Claims of 

immunity were rejected as to “allegations that the trustees made statements to various 

persons including newspaper reporters and members of the public to the effect that 

plaintiff suppressed facts from the board, tampered with minutes of board meetings, 
28.

received ‘kickbacks’ from district employees, engaged in ‘shady dealings’ and ‘cleaned 

up’ on business transactions involving the district.” (Lipman v. Brisbane Elementary 

Sch. Dist., supra, 55 Cal.2d at p. 234.) Although the plaintiff was reportedly under 

formal investigation for suspected wrongdoing, “[t]he statements allegedly made to the 

press and to members of the public were not confined to reports of charges that were 

being made; they purported to be statements of fact and were beyond the scope of the 

trustees’ powers.” (Ibid.) The opinion does not clearly explain why the actionable 

conduct was “beyond the scope of the trustees’ powers,” but it suggests the reason was 

because it occurred outside of the investigatory proceedings. (See id. at pp. 233–234.)

VI. Thomas’s Claims

Arax concedes Thomas and FUSD met their burden of showing the lawsuit arises 

from protected speech activity (the initial step of the anti-SLAPP analysis). We thus 

focus on Arax’s probability of prevailing on his cause of action. The first issue is 

whether the evidence demonstrates the applicability of section 47(a) as a matter of law. 

If it does not, the second issue is whether the evidence shows the absence of malice as a 

matter of law.

A. Section 47(a)

For purposes of this discussion, we assume the protection of section 47(a) is 

available to lower ranking public officials despite the California Supreme Court never 

overruling or expressly expanding the holding of Saroyan. Under Royer, i.e., the first 

appellate court decision to make this assumption, a defamatory statement by a local 

public official is absolutely privileged “so long as it is made (a) while exercising policymaking functions, and (b) within the scope of his [or her] official duties.” (Royer, supra, 

90 Cal.App.3d at p. 501.) This two-part test is derived from the high court’s analysis in 

Sanborn, which was decided more than 14 years after Saroyan and with the benefit of 

Johnson v. State of California, supra, 69 Cal.2d 782.
29.

Thomas devotes an inordinate portion of her briefing to arguing she acted in her 

“official capacity” at all relevant times. She repeatedly contends this alleged fact is 

sufficient to render her statements privileged under section 47(a). Elsewhere she argues 

the combination of speaking in her official capacity on “a matter of widespread concern”

is enough to shield her from liability.

Arax agrees Thomas was acting in her “official capacity” when she made the 

allegedly defamatory statements. This is alleged in the complaint, and he is presently 

bound by the allegation. (See Valerio v. Andrew Youngquist Construction (2002) 103

Cal.App.4th 1264, 1271 [“The admission of fact in a pleading is a ‘judicial admission’”].) 

Arax is deliberately pursuing a narrow theory of liability in order to seek recovery against 

both Thomas and FUSD. He contends Thomas was acting in her official capacity and 

“within the course and scope of her agency as a FUSD agent and elected trustee when she 

defamed [him],” but was not exercising a policymaking function.

When he finds it convenient to do so, Arax alleges there are triable issues of fact 

based upon FUSD’s contention that Thomas was not acting in her official capacity or 

within the scope of her elected position. He also engages in semantic hairsplitting over 

whether acting within the scope of one’s agency is the same as acting within the scope of

“official duties.” Nevertheless, Arax has consistently emphasized—below and on 

appeal—the need for, and lack of, evidence showing Thomas’s statements were part of a 

policymaking decision.

Thomas’s “official capacity” arguments seem designed to distract us from the 

policymaking issue. In her effort to avoid the issue, she alleges the trial court only 

considered the capacity in which she appeared on the GV Wire broadcast. The motion 

ruling says Thomas failed to demonstrate “that the participation in the interview was in 

her capacity as trustee or that specific statements naming plaintiff were privileged.”

(Italics added.) In any event, we are not bound by the trial court’s stated reasons for 

denying the motion. “If the decision of a lower court is correct on any theory of law 
30.

applicable to the case, the judgment or order will be affirmed regardless of the 

correctness of the grounds upon which the lower court reached its conclusion.” (Estate of 

Beard (1999) 71 Cal.App.4th 753, 776; accord, D’Amico v. Board of Medical Examiners

(1974) 11 Cal.3d 1, 19.)

The Sanborn case shows that acting in an official capacity and within the scope of 

one’s authority is only part of the test. Showing the official is entrusted with 

policymaking powers is also insufficient. “To be engaged in exercise of his [or her] 

policymaking function the official must reach a basic policy decision, as distinct from an 

operational decision, after balancing risks and advantages.” (Neary, supra, 185 

Cal.App.3d at p. 1142, citing Sanborn, supra, 18 Cal.3d at p. 415.) “‘The fact that an 

employee normally engages in “discretionary activity” is irrelevant if, in a given case, the 

employee did not render a considered decision.’” (Sanborn, at p. 415, quoting Johnson v. 

State of California, supra, 69 Cal.2d at p. 794, fn. 8.)

In Sanborn, the plaintiff “sought the release of approximately $25,400 in attached 

funds which had been deposited with [the defendant] in his capacity as county clerk. 

Although [the defendant] had been instructed by a deputy city attorney not to release the 

funds without a court order, [the defendant] decided that plaintiff’s claim on the funds 

was valid and paid the money to him.” (Sanborn, supra, 18 Cal.3d at p. 410.) After 

being informed “that he had erred in releasing the funds” and drawing media attention 

because of his mistake, the clerk defended himself to the press by casting the plaintiff in a 

negative and defamatory light. (Ibid.)

The Sanborn defendant’s reliance upon section 47(a) was rejected despite the fact 

his statements were made while “acting within the scope of his employment.” (Sanborn, 

supra, 18 Cal.3d at pp. 409–410.) We also note the erroneous disbursement of $25,400

(in 1968 dollars) likely constituted a matter of public concern or interest. Indeed, the 

defamatory statements were made in response to an interview request from the San 

Francisco Chronicle. (Sanborn, supra, 18 Cal.3d at p. 410.) Despite those 
31.

circumstances, none of the defendant’s conduct was viewed as having occurred in the 

exercise of a policymaking function. (Id. at p. 413.)

Thomas does not discuss Sanborn in her briefing. She instead relies on Kilgore v. 

Younger, supra, 30 Cal.3d 770 and Morrow v. Los Angeles Unified School Dist., supra, 

149 Cal.App.4th 1424. We are not persuaded.

The Kilgore defendant was a high-ranking state official (the California Attorney 

General) who had distributed an official report to the media on the findings of a 

commissioned study on organized crime. (Kilgore v. Younger, supra, 30 Cal.3d at p. 

774.) The report, which the defendant publicly “adopted,” contained allegedly 

defamatory statements about the plaintiff. (Id. at pp. 774–775.) A four-justice majority 

of the California Supreme Court held the plaintiff’s defamation claim was barred by the 

official duty privilege of section 47(a). (Kilgore, at pp. 777–778.)

Kilgore was decided five years after Sanborn but did not involve a lower ranking 

state official. The majority opinion states, in relevant part, “The absolute privilege is 

extended to ‘high-ranking state and federal officials, such as the President of the United 

States, the governor of any state or territory, cabinet officers of the United States and the 

corresponding officers of any state or territory’ [citation] on the rationale that their ability 

to function would be impaired and society adversely affected if they were not absolutely 

free of the threat of suit by the defamed seeking recompense for injury.” (Kilgore v. 

Younger, supra, 30 Cal.3d at p. 778.) We do not view Kilgore as helpful to Thomas’s 

position. (See id. at p. 781 [“No California case has been brought to our attention which 

denies to a high-ranking state official, such as the Attorney General, immunity from civil 

liability for publications made in the course of his policy making functions,” italics 

added].)

In Morrow, the Superintendent of Schools for the Los Angeles Unified School 

District (superintendent) spoke to the Los Angeles Times about the decision to remove a 

high school principal from his position. (Morrow v. Los Angeles Unified School Dist., 
32.

supra, 149 Cal.App.4th at pp. 1429, 1431–1432.) The statements indicated the principal 

had responded inadequately to a “series of violent campus disturbances” (id. at p. 1430), 

and that his “handling of the student disturbances had ‘accelerated’ the decision to 

replace him” (id. at p. 1432). The principal sued the superintendent for defamation

(among other claims), and the superintendent prevailed on an anti-SLAPP motion. As to 

the defamation claim, the ruling was upheld on appeal based on section 47(a).

The Morrow opinion cites favorably to Copp and parrots Copp’s reliance upon 

Saroyan and Barr, including the erroneous characterization of Barr as “the federal 

Supreme Court’s leading decision” on the subject. (Morrow v. Los Angeles Unified 

School Dist., supra, 149 Cal.App.4th at p. 1441; see id. at pp. 1440–1441.) Although the 

principal argued the superintendent “was not exercising a policymaking function when he 

made the challenged statements,” the Morrow court quoted Copp for the proposition that 

“the executive privilege broadly ‘encompass[es] all discretionary acts essential to the 

proper exercise of an executive function’ decision.” (Morrow, at p. 1442.) But the 

opinion never explains what the term “‘discretionary acts’” is supposed to mean. It 

merely says the superintendent’s “statements to the press cannot be deemed ministerial or 

unrelated to a legitimate policymaking function. Rather, as superintendent he was 

publicly explaining the district’s response to a matter of widespread concern, which was 

one of his official duties.” (Morrow, at pp. 1442–1443, italics added.)

The reasoning in Morrow is in tension with Sanborn. (Morrow v. Los Angeles 

Unified School Dist., supra, 149 Cal.App.4th at pp. 1442–1443.) As discussed, Sanborn

states, “A governmental officer’s discussions with the public or press regarding the 

functioning of his office would seem, instead, to fall within the category of those routine, 

ministerial duties incident to the normal operations of that office.” (Sanborn, supra, 18 

Cal.3d at p. 415.) In any event, Morrow is distinguishable because the Morrow

defendant’s statements were at least directly related to a policy decision, i.e., the removal 

of a high school principal from his position. (See Caldwell v. Montoya (1995) 10 Cal.4th 
33.

972, 983 [decision to remove a school district’s superintendent is a “basic policy 

decision” to which immunity applies]; Kemmerer v. County of Fresno (1988) 200 

Cal.App.3d 1426, 1437–1438 [whether to initiate disciplinary proceedings against an 

employee is a policy decision involving the exercise of discretion], disapproved on other 

grounds in Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 815, fn. 

8; cf. Skinner v. Vacaville Unified School Dist. (1995) 37 Cal.App.4th 31, 39 [a school 

board’s decision to expel a student “entails ‘the resolution of policy considerations ... 

that compels immunity’”].)

The parties’ evidence provides very little context for the statements made by 

Thomas during the GV Wire broadcast. The statements are quoted in isolation, and 

without any indication of what prompted them. The evidence shows there was a 

controversial incident at Bullard High School 13 days earlier involving the so-called 

“KKK photo,” but Thomas’s statements concerned an alleged incident from nine years 

earlier, in “Summer 2013.” There is no evidence of a policy decision made between the 

photo incident and the GV Wire broadcast to which Thomas’s allegedly defamatory 

statements might relate. (Cf. Morrow v. Los Angeles Unified School Dist., supra, 149 

Cal.App.4th at p. 1442 [defendant, “in his capacity as the chief executive officer of the 

governing board of the district ..., announced the impending transfer of a district 

employee as part of the school district’s response to a notorious crisis in a public high 

school”].) And there is no evidence Thomas’s statements were made while she was 

“exercising policy-making functions.” (Royer, supra, 90 Cal.App.3d at p. 501.)

“[T]here is no basis for immunizing lower level decisions that merely implement a 

basic policy already formulated.” (Barner v. Leeds, supra, 24 Cal.4th at p. 685 

[discussing discretionary act immunity under Gov. Code, § 820.2].) Arax’s declaration 

indicates FUSD already had antiharassment and antidiscrimination policies that 

prohibited racist behavior, e.g., the “use of racial slurs and epithets.” Insofar as one could 

infer Thomas’s statements were part of a general denouncement of racism within FUSD, 
34.

such conduct would seem to fall into the category of operational or ministerial action. 

Put differently, it would not fall into the category of planning or policymaking. (See 

Sanborn, supra, 18 Cal.3d at pp. 413, 415.) Additional evidence would be required to 

reach a different conclusion.

Thomas attempts to satisfy the Copp and Morrow standard by arguing her 

“participation in the GV Wire interview was not unrelated to a legitimate policymaking 

function” because she was publicly responding “to a matter of widespread concern (the 

KKK photo controversy).” (See Morrow v. Los Angeles Unified School Dist., supra, 149 

Cal.App.4th at pp. 1442–1443 [using the phrases “unrelated to a legitimate policymaking 

function” and “response to a matter of widespread concern”].) Even if we were inclined 

to follow Morrow, Thomas fails to explain the connection between her statements and 

any policy decisions. The closest she comes is in her reply brief, where she quotes this 

allegation from the complaint:

“‘At a press conference, preceding Ms. Thomas’ May 17, 2022 interview 

with GV Wire, Ms. Thomas claimed FUSD had historically covered up and 

ignored past instances of racist behavior at Bullard High School and called 

for the creation of a special commission to investigate and recommend 

appropriate remediation measures.’”

Thomas’s own declaration more specifically contends, “At the press conference I 

called for a special commission to investigate FUSD’s responses to the May 4, 2022, 

photograph, and other incidents of racism within FUSD.” The quoted statement is the 

actual evidence, and it raises numerous questions. Upon whom was Thomas calling to 

create “a special commission to investigate FUSD’s responses to ... incidents of racism”? 

Was she calling upon FUSD to investigate itself? Did the FUSD Board of Trustees ever 

pursue or formally contemplate such action prior to the GV Wire broadcast?

Thomas merely claims to have voiced a suggestion during a press conference, 

which is quite different from making a formal motion during board proceedings or voting 

on an agenda item. It is not clear her alleged remarks at the press conference would 
35.

qualify as a policy decision. (See generally Ed. Code, §§ 35163 [“Every official action 

taken by the governing board of every school district shall be affirmed by a formal vote 

of the members of the board”], 35164 [“The governing board shall act by majority vote of 

all of the membership constituting the governing board”].) And although defendants 

want us to assume Thomas’s statements about Arax were made in direct relation to her 

“special commission” proposal, the evidence does not clearly establish such a 

connection.3

In sum, Thomas is not a high-ranking government official. The evidence does not 

establish her allegedly defamatory statements about Arax were made in the exercise of a 

policymaking function or even in relation to a policy decision. We thus conclude the 

evidence does not show the applicability of section 47(a) as a matter of law.

B. Malice

Arax is seeking compensatory, presumed, and punitive damages. As earlier noted, 

the latter two require proof of malice regardless of whether he is a public or private figure

(assuming the defamation involves a matter of public concern). (Khawar v. Globe 

Internat., Inc., supra, 19 Cal.4th at p. 274.) Thomas and FUSD argued Arax is a public 

figure in order to have malice deemed an essential element of his claim. The trial court 

“decline[d] to designate [him] as a limited public figure based on the evidence and 

arguments submitted with [the motions].” Arax’s status was thus left open for future 

determination. (See Code Civ. Proc., § 425.16, subd. (b)(3); Mosesian v. McClatchy 

Newspapers, supra, 233 Cal.App.3d at p. 1694 [“Whether a plaintiff is a public official or 

public figure is in the first instance a question of law for the trial court to decide”].)

3During oral argument before this court, Thomas’s attorney characterized her statements 

at the press conference as a call upon FUSD to investigate itself with regard to an alleged history 

of “cover[ing] up and ignor[ing] past instances of racism.” Thomas’s attorney also claimed her 

statements about Arax were “directly related” to her remarks at the press conference and 

“arguably in defense of that policy.”
36.

Although we agree with the trial court’s assessment of the evidence it considered, 

we need not discuss it further because even if the court erred, the error was not 

prejudicial unless the evidence negated malice as a matter of law. As we now explain, 

the evidence presents triable issues of fact on the question of malice.

To reiterate, malice in this context means knowledge of falsity or reckless 

disregard for the truth. (Khawar v. Globe Internat., Inc., supra, 19 Cal.4th at p. 275.) 

“Although at trial a public figure plaintiff must establish actual malice by clear and 

convincing evidence, in the context of an anti-SLAPP motion the plaintiff must instead 

establish only a ‘probability’ that he or she can produce clear and convincing evidence of 

actual malice.” (Edward v. Ellis (2021) 72 Cal.App.5th 780, 793; accord, Collins v. 

Waters (2023) 92 Cal.App.5th 70, 80.) As such, the burden is “‘not high.’” (Edward, at 

p. 794.)

Malice is provable by circumstantial evidence. (Reader’s Digest Assn. v. Superior 

Court, supra, 37 Cal.3d at p. 257.) “Factors such as failure to investigate, anger and 

hostility, and reliance on sources known to be unreliable or biased ‘may, in an 

appropriate case, indicate that the publisher himself had serious doubts regarding the 

truth of his publication.’” (Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 

221, quoting Reader’s Digest, at p. 258.) “However, any one of these factors, standing 

alone, may be insufficient to prove actual malice or raise a triable issue of fact.” 

(Mitchell, at p. 221.)

We begin by comparing the statements in question with Thomas’s subsequent 

explanations of her words. During the GV Wire broadcast, she alleged Arax called her 

middle son the N-word during “football practice,” which led her son to decide “he’s not 

playing for Bullard anymore.” (Italics added.) Thomas also said the incident occurred 

when her son “was starting high school.” Within days of those statements, a GV Wire 

reporter quoted Thomas as having also said, “‘I’m sure my son and his friends who were 
37.

on the team would be willing to make a statement seeing as they are graduates and he 

[Arax] is no longer a threat to their education.’” (Italics added.)

The quoted statements are reasonably interpreted as indicating Thomas’s middle 

son was once a Bullard High School student and played football on a Bullard High 

School team. The last quoted sentence, when read in light of Thomas’s subsequent 

explanations, elicits the question of what team she was talking about and how Arax was a 

threat to her middle son’s education if he never attended the school where Arax taught 

and coached. In her declaration, Thomas said the incident occurred not when her son 

“was starting high school,” but rather when he “was a student at Tenaya Middle School”

and during “a summer football camp.” An objective trier of fact could reasonably 

conclude, upon comparing the statements, that Thomas was deliberately misleading in 

conveying the impression her middle son had attended Bullard High School and played 

football on a team coached by Arax. Such a conclusion would in turn be probative of 

knowledge of falsity, especially given the evidence Arax did not even coach the summer 

camp. (See Edward v. Ellis, supra, 72 Cal.App.5th at pp. 973–974 [denial of anti-SLAPP 

motion supported by evidence raising “credibility questions” about defendant’s denial of 

malicious intent]; ZL Technologies, Inc. v. Does 1-7, supra, 13 Cal.App.5th at p. 632 

[“Evidence of falsity will be relevant to any determination of malice”].)

Next, we consider the evidence of Thomas’s motives for harming Arax’s 

reputation. Although his alleged use of the N-word reportedly occurred in “Summer 

2013,” Arax declared that prior to May 2022, Thomas had never confronted him with this 

accusation. He further declared Thomas met with him in approximately 2019 “to discuss 

a tutorial program to assist African American students and athletes,” but she never said

anything to him about her middle son or the N-word. Evidence of an amicable 

relationship prior to 2021, when Arax alleges Thomas’s “animosity” toward him 

developed, is probative of a malicious motive. (See Balla v. Hall (2021) 59 Cal.App.5th 

652, 684 [“hostility is relevant if it reflects on the [defendant’s] attitude toward the truth 
38.

of the statements”]; Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 

1292 [“evidence of ill will may be circumstantial evidence of actual malice”].)

Arax, who declares himself to be of Armenian descent, alleges a feud of sorts 

developed between Thomas and Arax’s brother in 2021 stemming from “the Arax-family 

effort to rename Forkner Elementary [School] to H. Roger Tatarian Elementary School.” 

Thomas allegedly acted with “contempt and ridicule” toward the renaming effort, and she 

allegedly received negative publicity as a result. Thomas’s briefing of the malice issue is 

almost entirely devoted to Arax’s contentions about the “Forkner Elementary” dispute.

What Thomas’s briefing does not address is the information set forth in paragraph 

17 of Arax’s sworn declaration. Arax declared as follows:

“On December 13, 2021, [five months prior to the allegedly defamatory 

statements,] one [of] my student aids [sic] in my class observed and 

reported an incident concerning Ms. Thomas’ youngest son, who is in fact a 

Bullard High Student unlike [her middle son]. The [youngest son] had 

inappropriately patted a female student on the rear end at school. As a 

mandatory reporter, I had to report the incident to the vice-principal, which 

I did. As I perceived it, this reignited and fueled Ms. Thomas’ animosity 

towards me and directly towards me now. At the time I made the report, I 

did not know that the student was Ms. Thomas’ son, I learned that later.”

The above evidence is obviously probative of malice.

Lastly, we observe Thomas has appropriately abandoned her argument below that 

declaring a reasonable belief in her statements proved a lack of malice. (See Fisher v. 

Larsen (1982) 138 Cal.App.3d 627, 640 [“‘The mere profession of a defendant that he 

believed in good faith that his statements were true does not automatically entitle him to a 

verdict in his favor’”]; cf. Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 

412, 421 [“Defendants cannot require a court to accept their ipse dixit assertion of good 

faith, particularly on motion for summary judgment”].) Pursuant to the foregoing 

analysis, we conclude the parties’ evidence does not show the absence of malice as a 

matter of law.
39.

C. Trial Court’s Rejection of Thomas’s Reply Evidence

Thomas argues the trial court abused its discretion by rejecting as untimely various 

evidence she filed in conjunction with her reply brief. Relying on RGC Gaslamp, LLC v. 

Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, Thomas says the trial court 

abused its discretion because the evidence “‘was supplemental to evidence submitted in 

the moving papers [and] not brand new.’” (Id. at p. 431.) Arax disagrees.

We need not resolve this dispute because even if Thomas could show error, the 

claim would fail for lack of prejudice. (See Cal. Const., art. VI, § 13; Code Civ. Proc., 

§ 475; F.P. v. Monier (2017) 3 Cal.5th 1099, 1107 [explaining the Cal. Const. “expressly 

preclude[s] reversal absent prejudice”].) To establish prejudice, Thomas must show “that 

a different result would have been probable if [the] error ... had not occurred.” (Code 

Civ. Proc., § 475.) Put differently, an error is harmless if it is “not reasonably probable 

[the appellant] would have obtained a more favorable result in its absence.” (Soule v. 

General Motors Corp. (1994) 8 Cal.4th 548, 570.)

Thomas labels the alleged error “prejudicial” but fails to explain how the motion 

ruling would have been different had the “supplemental” evidence been considered. We 

address each piece of evidence separately.

1. Minutes of FUSD Board of Trustees Meeting Held May 18, 2022

The disallowed evidence shows the FUSD Board of Trustees formally met one day 

after the GV Wire “Unfiltered” broadcast in which Thomas’s allegedly defamatory 

statements were made. The minutes do not mention the “Unfiltered” program or 

Thomas’s statements about Arax. Thomas alleges the minutes show she “was authorized 

by FUSD to participate in the GV Wire interview in her official capacity as an FUSD 

Trustee as part of FUSD’s ongoing response to the KKK photo controversy.” Thomas 

further contends the minutes show FUSD ratified her allegedly defamatory statements.

Arax’s complaint alleges Thomas acted in her “official capacity” and that FUSD 
40.

“ratified” her actions, so we fail to see how the evidence would change the anti-SLAPP 

ruling.

Thomas points to the following statement of the FUSD superintendent regarding 

either unspecified “racist incidents” that occurred after the controversial photograph 

incident of May 4, 2022, or the photograph incident itself. (It is unclear which, and also 

unclear whether the “racist incidents” were national events discussed in prefatory 

remarks or incidents within FUSD):

“Conversations and work are continuing this week and will be ongoing. It 

is critical that every single one of our Fresno Unified staff are with me and 

our district leadership in denouncing this behavior and standing firm that 

cultural destructiveness, racism, and hate are NEVER a joke. There is NO 

room for neutrality from the adults in our system. We cannot and should 

not minimize this behavior as ‘kids being kids’. So, let me be clear, your 

district leadership and I expect each person employed by Fresno Unified to 

take any act of racism or cultural destructiveness seriously and to actively 

interrupt and report this behavior when you see it or hear it. No 

exceptions.”

In essence, the superintendent implored FUSD staff and others to support his 

denouncement of acts of racism that allegedly occurred in May 2022. All FUSD 

employees were instructed to take “any act of racism or cultural destructiveness seriously 

and to actively interrupt and report this behavior when you see it or hear it.” The minutes 

say nothing about media appearances or leveling accusations against staff members 

regarding events from many years in the past. Thomas does not claim these minutes 

constitute policymaking evidence, and, moreover, they postdate her appearance on 

“Unfiltered.” If anything, they reinforce the conclusion such media appearances would 

fall into the category of operational or ministerial actions implementing a preexisting 

policy—assuming such appearances were in fact authorized.
41.

2. Minutes of FUSD Board of Trustees Meeting Held October 13, 

2021

Thomas proffered the minutes from a board meeting held seven months prior to 

the events at issue to show that she voted to change the name of Forkner Elementary 

School. Arax responds by arguing Thomas made a motion and voted to change the name 

only to “try and rehabilitate her damaged reputation.” The minutes do not reveal what 

prompted Thomas to support the name change. Regardless, there is additional evidence 

of malice and the board minutes do not show the absence of malice as a matter of law.

3. GV Wire News Article Dated June 13, 2022

On or about June 13, 2022, GV Wire published a written article under the 

headline, “Bullard Coach Files Defamation Claim Against Trustee in Racial Slur 

Allegation.” The article reports that Arax filed a prelitigation claim (see Gov. Code, 

§ 911.2) seeking damages from FUSD based on Thomas’s allegedly defamatory 

statements during the “Unfiltered” broadcast. The article provides no support for 

Thomas’s anti-SLAPP motion.

4. GV Wire News Article Dated June 16, 2022

On or about June 16, 2022, GV Wire published a written article under the 

headline, “Fresno Trustee Responds to Bullard Coach’s Defamation Claim.” Although 

the copy provided by Thomas is partially illegible, the article appears to quote her as 

saying, in relevant part:

“[M]y son was heavily sought after from high school coaches. As a Tenaya 

football team member, he was invited to summer training for incoming 

freshman at no cost by the way. My son attended training at Bullard and it 

was at that time in which my son experienced the n-word being used 

toward players [illegible] home and said he refused to play for Bullard. So 

Mr. Arax is correct he did not play for him.”

Thomas contends the article shows a consistent explanation of her allegedly 

defamatory statements before and after the filing of Arax’s lawsuit. She fails to explain 

how the trial court’s consideration of this evidence would have changed the motion 
42.

ruling. We conclude it would not have affected the trial court’s decision. Therefore, any 

error in excluding it was harmless.

VII. FUSD’s Claims

FUSD maintains it cannot be held liable for Thomas’s allegedly defamatory 

statements. We conclude there are disputed and unresolved factual issues regarding 

vicarious liability.

“The doctrine of respondeat superior holds an employer liable for torts of its 

employees committed within the scope of their employment.” (Moreno v. Visser Ranch, 

Inc. (2018) 30 Cal.App.5th 568, 575.) “Respondeat superior is based on ‘“a deeply 

rooted sentiment”’ that it would be unjust for an enterprise to disclaim responsibility for 

injuries occurring in the course of its characteristic activities,” and the doctrine “applies 

to public and private employers alike.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 

202, 208, 209.) Public entities are liable for injuries “proximately caused by an act or 

omission of an employee of the public entity within the scope of his [or her] employment 

if the act or omission would [otherwise] have given rise to a cause of action against that 

employee.” (Gov. Code, § 815.2, subd. (a).)

A public “employee” is broadly defined to include “an officer ... whether or not 

compensated ....” (Gov. Code, § 810.2.) Government Code section 815.3 establishes 

special procedural rules for asserting intentional tort claims against elected officials, but 

it does not apply to defamation. (Id., subd. (a).) Defamation claims against an elected 

official are subject to the general rules set forth in Government Code section 815.2. (See 

ibid.; Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2023) 

¶¶ 2:2615, 2:2628, pp. 2(III)-3, 2(III)-6 to 2(III)-7.) FUSD acknowledges Thomas’s 

status as an employee for purposes of this lawsuit.

A plaintiff relying on a theory of respondeat superior has the burden to show the 

tortfeasor was acting within the scope of his or her employment. (Moreno v. Visser 
43.

Ranch, Inc., supra, 30 Cal.App.5th at p. 576.) However, the issue is “generally a 

question of fact, not of law. [Citations.] It becomes a question of law that may be 

resolved on a [dispositive motion] only when ‘the facts are undisputed and no conflicting 

inferences are possible.’” (Farmers Ins. Group v. County of Santa Clara (1995) 11 

Cal.4th 992, 1043 (dis. opn. of Mosk, J.); accord, Mary M. v. City of Los Angeles, supra,

54 Cal.3d at p. 213.)

FUSD’s moving papers argued Thomas acted outside the scope of her 

employment when she appeared on the GV Wire broadcast, but FUSD produced no 

evidence to support the assertion. FUSD continues to make the argument, but it is 

“axiomatic that the unsworn statements of counsel are not evidence.” (In re Zeth S., 

supra, 31 Cal.4th at p. 413, fn. 11.) It is one thing to disavow Thomas’s actions in a 

brief; it is quite another for someone like the FUSD superintendent or board president to 

do it in a sworn declaration.

FUSD relied on two aspects of Bylaw 9005 at the motion hearing, but neither is 

dispositive of the issue. One excerpt from Bylaw 9005 reads as follows:

“Board members may not unilaterally schedule meetings purporting to 

represent the District in violation of generally accepted Board practices and 

policies. Board members shall not unilaterally attend internal staff 

meetings or meetings between administration and third parties unless 

invited by District or site administration, or authorized by the 

superintendent or by action of the Board.”

It was suggested at the motion hearing and in the trial court’s ruling that Thomas’s 

appearance on the “Unfiltered” program was arguably a “meeting” scheduled in violation 

of the above rule. FUSD cites the rule again in its opening brief. However, elsewhere in 

Bylaw 9005 it explains this rule concerns the FUSD Board of Trustees’ “interact[ion] 

with District administration,” and is designed to help “maintain effective management 

and clarity of roles.” GV Wire is a third-party media entity, not part of the “District 
44.

administration.” When read in context, the rule’s relevance to the “Unfiltered” broadcast 

seems doubtful.4

FUSD also relies on a section of Bylaw 9005 requiring board members to 

“[r]efrain from rude or abusive conduct, personal attacks, or verbal attacks upon the 

character or motives of other Board members, District employees, or members of the 

public.” (Italics added.) It appears Thomas violated this bylaw when she made her 

accusations against Arax during the “Unfiltered” program. However, an employee’s 

violation of rules does not necessarily prove he or she was acting outside the scope of 

their employment.

“California has adopted the rationale that the employer’s liability should extend 

beyond his actual or possible control over the employees to include risks inherent in or 

created by the enterprise ....” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 

608, 618.) “‘A risk arises out of the employment when “in the context of the particular 

enterprise an employee’s conduct is not so unusual or startling that it would seem unfair 

to include the loss resulting from it among other costs of the employer’s business.”’”

(Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at p. 1003, quoting 

Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968.) Accordingly, “an 

employee’s tortious act may be within the scope of employment even if it contravenes an 

express company rule and confers no benefit to the employer.” (Farmers Ins. Group, at 

p. 1004.) However, the employer “will not be held vicariously liable for an employee’s 

malicious or tortious conduct if the employee substantially deviates from the employment 

duties for personal purposes.” (Id. at p. 1005; e.g., Perry v. County of Fresno (2013) 215 

4The rule would be relevant to Thomas’s presence at the Bullard High School staff 

meeting on May 6, 2022, which Arax has described as “highly irregular.” In a supplemental 

declaration, Thomas claimed she was invited to the meeting by an unnamed “Bullard High 

School staff member” and attended “after informing Superintendent Robert Nelson of [her]

intent to do so.”
45.

Cal.App.4th 94, 98–100, 105 [employee’s criminal and tortious conduct “was a personal 

endeavor that was totally unrelated to his job”].)

In Perez, the employer had “a company rule [that] forbade anyone but the driver”

to ride on its tractors. (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 965.) 

An employee violated the rule by operating a tractor with a passenger on board. The 

passenger fell from the tractor, sustaining grave injuries, and the employer was held 

liable for the employee’s negligence. Whether the employee acted in the scope of his 

employment was a question of fact decided against the employer by a jury, and the 

California Supreme Court upheld the judgment. Although the employee violated a rule, 

he “was clearly performing an assigned task of the employer.” (Id. at p. 970.) “The 

presence of an unauthorized passenger was insufficient to take [the employee] outside the 

scope of his employment since he was still carrying out his employer’s business.” (Ibid.) 

In short, Perez holds “proof of an employer’s authorization of his employee’s act is not 

necessary to show that the act was within the scope of employment.” (Id. at p. 969.)

To fall within the scope of employment, the employee’s conduct “must be ‘an 

“outgrowth” of the employment’ and the risk of tortious injury must be ‘“‘inherent in the 

working environment’”’ or ‘“‘typical of or broadly incidental to the enterprise [the 

employer] has undertaken.’”’” (Daza v. Los Angeles Community College Dist. (2016) 

247 Cal.App.4th 260, 268.) When determining this issue, the trier of fact may consider 

“whether the conduct benefited the employer, whether it was authorized or directed by 

the employer, the reasonable expectations of the employer, the amount of freedom the 

employee has to perform the duties of the job, the type of work the employee was hired to 

do, the nature of the conduct involved, and the time and place of the [tortious behavior].”

(Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1058.) 

“Acts that do not benefit the employer may nonetheless fall within the scope of 

employment.” (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at p. 

1042.) On the other hand, “vicarious liability is inappropriate when an employee’s 
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misconduct does not arise from the conduct of the employer’s enterprise, but instead 

arises from a personal dispute.” (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 

292; see Perry v. County of Fresno, supra, 215 Cal.App.4th at p. 102.)

Turning to the evidence, Thomas’s declaration confirms she appeared and spoke at 

an FUSD press conference on May 9, 2022, regarding the controversial photograph 

incident from five days earlier. This indicates that public speaking appearances outside 

of board meetings are generally within the scope of her employment. The press 

conference related to an incident at Bullard High School. Although Thomas does not 

represent the region in which Bullard is located, she was permitted to speak about the 

controversy during the press conference. Such permission is reasonably inferable by the 

presence of the superintendent and additional board members at the same event.

Thomas appeared on the “Unfiltered” program on May 17, 2022, and spoke 

publicly on the advertised topic of “Bullard High and Racism in Fresno Unified.” Given 

her speaking role at the press conference eight days earlier on basically the same topic, it 

is an unresolved question of fact whether her “Unfiltered” appearance was within the 

scope of her employment. Thomas has declared she appeared in her “capacity as an 

FUSD [t]rustee to discuss the history of racism at Bullard High School, [her] alma mater, 

given the May 4, 2022, photograph, and corresponding public outcry.”

FUSD argues Thomas made her accusations against Arax for “‘purely personal’”

reasons unconnected to, i.e., not arising from, her employment. There are two problems 

with the argument. First, the appearance on “Unfiltered” was not entirely unconnected to 

Thomas’s position as an FUSD trustee. She was invited on the show to speak about 

“Racism in Fresno Unified,” not about plaintiff Arax, and she has attested to discussing 

“specific incidences of racism within FUSD and Bullard High School, including the 

May 4, 2022, photograph,” during the broadcast. Second, FUSD’s argument seems to 

impliedly assume Thomas acted with malice. Thomas has attested to believing her 

statements were true, which presents issues of fact as to why she made them. Whether 
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she genuinely believed the accusation is closely tied to the question whether her conduct 

“substantially deviate[d] from the employment duties for personal purposes.” (Farmers 

Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at p. 1005.)

The Sanborn case involved an analogous scenario. In addition to suing the clerk

for defamation, the Sanborn plaintiff also sued the city pursuant to a respondeat superior 

theory. (Sanborn, supra, 18 Cal.3d at pp. 410–411.) As discussed, the clerk erroneously 

released $25,400 in attached funds to the plaintiff and subsequently granted a press 

interview in which he defamed the plaintiff while attempting to defend and excuse his 

mistake. A jury concluded the clerk acted within the scope of his employment, but on 

appeal the city “insist[ed] that the sole purpose of the statement in question was for [the 

clerk’s] personal advantage and gain.” (Id. at p. 412.) The California Supreme Court 

rejected the argument:

“[W]e cannot presume as a matter of law that the statements were of no 

conceivable benefit to the City, or that their object was solely to save [the 

clerk] from personal embarrassment. The jury reasonably could have 

concluded that responses to press inquiry constituted, as to time, place, and 

circumstance, responses of a public official regarding his administration of 

a public office and thus was within the scope of his public employment. 

An important public purpose is served both by the press inquiry and by the 

official’s response. We conclude, accordingly, that the statement was made 

within the ambit of [the clerk’s] public employment, and that his principal, 

City, is liable therefor in the absence of other defenses.” (Ibid.)

Finally, there are factual issues regarding foreseeability, authorization, and 

ratification. Was the risk that Thomas might defame Arax really “so unusual or 

startling”? (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968.) There is 

evidence Thomas attended a staff meeting on May 6, 2022, and openly accused unnamed 

“‘white’ Bullard High School coaches of using the ‘N-word’ on campus.” While this 

may have violated the bylaw prohibiting verbal attacks on the character of FUSD

employees, there is no evidence Thomas was admonished or disciplined for her remarks. 

Three days later, Thomas spoke at a press conference and reportedly “stated that Bullard 
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High School, and specifically certain [unnamed] members of its staff were racist against 

African American students.” The superintendent was present for this second arguable 

violation of Bylaw 9005, but again there is no indication FUSD leadership had any 

problem with her making such accusations. There is likewise no indication FUSD’s 

leadership disapproved of Thomas personally attacking Arax during the “Unfiltered”

broadcast.

The evidence presented to the trial court did not show Thomas’s allegedly 

defamatory statements were made outside the scope of her employment as a matter of 

law. FUSD’s remaining arguments concern section 47(a), and they fail for the reasons 

given above regarding Thomas’s claims. We will, however, discuss one more case not 

cited in Thomas’s briefing but relied upon by FUSD: Maranatha Corrections, LLC v. 

Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075 (Maranatha).

The Maranatha case involved a libel claim against the director of the California 

Department of Corrections and Rehabilitation (CDCR), the CDCR itself, and the State of 

California. (Maranatha, supra, 158 Cal.App.4th at pp. 1079–1080.) The allegedly 

libelous statements constituted the reasons given for the CDCR’s termination of a 

contractual relationship with a private contractor, and they were made in an official letter 

notifying the contractor of the CDCR’s decision. The contractor sued based on the 

CDCR director’s release of the letter to the press. (Id. at pp. 1079, 1081–1082.)

The Maranatha defendants prevailed on an anti-SLAPP motion, and the Third 

Appellate District upheld the ruling based on Saroyan, Kilgore v. Younger, supra, 30 

Cal.3d 770, and Morrow v. Los Angeles Unified School Dist., supra, 149 Cal.App.4th 

1424, among other cases. The CDCR’s termination of its relationship with the contractor 

was a policy decision, i.e., “the result of careful consideration of an important issue by a 

policymaking agency head of state government.” (Maranatha, supra, 158 Cal.App.4th at 

p. 1089.) The CDCR director’s release of the letter to the press was done “in defense of a 

policy decision she made.” (Id. at p. 1088.) In the present matter, as we have discussed, 
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the parties’ anti-SLAPP evidence establishes neither an analogous policymaking decision 

by Thomas nor a direct connection between such a decision and her statements about 

Arax.

DISPOSITION

The orders from which the appeals are taken are affirmed. Plaintiff shall recover 

his costs on appeal.

PEÑA, Acting P. J.

WE CONCUR:

SMITH, J.

SNAUFFER, J.