Filed 2/8/16 Bright Star Schools v. Hilger CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

BRIGHT STAR SCHOOLS,

Plaintiff and Respondent,

v.

JEFF HILGER,

Defendant and Appellant.

 B263844

 (Los Angeles County

 Super. Ct. No. BC562012)

APPEAL from an order of the Superior Court of the County of Los Angeles, 

Ernest Hiroshige, Judge. Reversed.

Winston, Garrou & Mooney, Jerome H. Mooney and John H. Weston for 

Defendant and Appellant.

Procopio, Cory, Hargreaves & Savitch, Kendra J. Hall and John C. Lemmo for 

Plaintiff and Respondent.
2

INTRODUCTION

Defendant and appellant Jeff Hilger appeals from a portion of the trial court’s

order denying, in part, his Code of Civil Procedure section 425.161(anti-SLAPP statute2) 

special motion to strike. Defendant contends the trial court erred in denying his antiSLAPP motion as to the first and second causes of action because they arise from a 

protected activity and plaintiff cannot establish there is a probability it will prevail on 

these claims. We reverse the order denying the motion to strike the first and second 

causes of action.

FACTUAL BACKGROUND

In 2003, defendant founded and was one of the original members of the Board of 

Directors (Board) of Stella Middle Charter Academy, which ultimately became plaintiff. 

Defendant served in various management capacities for plaintiff over approximately 10 

years. 

Plaintiff is a non-profit corporation organized and existing under the laws of the 

State of California. Plaintiff operates five public charter schools pursuant to charters 

granted by the Los Angeles Unified School District, and has over 2,000 students at grade 

levels five through twelve. 

Plaintiff’s Second Amended and Restated By Laws (bylaws) provides plaintiff is 

managed under the ultimate discretion of the Board, and the Board is empowered to 

select plaintiff’s officers. The bylaws define officers and outline how they are selected, 

as follows: “Section 1. Officers. The officers of the corporation shall be a Chairman of 

 

1 All further statutory references are to the Code of Civil Procedure unless otherwise 

indicated.

2

SLAPP is an acronym for strategic lawsuit against public participation. (Equilon 

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.)
3

the Board or a President, or both, a Secretary and a Treasurer. The corporation may also 

have, at the discretion of the Board, one or more Vice Presidents, one or more Assistant 

Secretaries, one or more Assistant Treasurers, and such other officers as may be elected 

or appointed in accordance with the provision of Section 3 of this Article IV. [¶] Section 

2. Election. The officers of the corporation, except such officers as may be elected or 

appointed in accordance with the provisions of Section 3 or Section 5 of this Article IV, 

shall be chosen annually by, and shall serve at the pleasure of, the Board, and shall hold 

their respective offices until their resignation, removal, or other disqualification from 

service, or until their respective successors shall be elected. [¶] Section 3. Subordinate 

Officers. The Board may elect, and may empower the chief executive officer of the 

corporation to appoint, such other officers as the business of the corporation may require, 

each of whom shall hold office for such period, have such authority and perform such 

duties as are provided in these Bylaws or as the Board may from time to time 

determine. [¶] . . . [¶] Section 5. Vacancies. A vacancy in any office because of death, 

resignation, removal, disqualification, or any other cause shall be filled in the manner 

prescribed in these Bylaws for regular election or appointment to such office, provided 

that such vacancies shall be filled as they occur and not on an annual basis.”3

From mid-2008 through 2012, defendant supervised the “academic aspects” of 

plaintiff. On August 13, 2013, after defendant returned from a one-year sabbatical, 

plaintiff and defendant entered into a Separation and Release Agreement (separation 

agreement). Pursuant to the separation agreement, defendant voluntarily resigned his 

employment with plaintiff, and plaintiff agreed to pay to defendant the sum of $80,000. 

The separation agreement included a “nondisparagement clause” stating, 

“[Plaintiff’s] officers and directors and [defendant] agree that they will not make any 

negative, derogatory or disparaging statements, publications or comments, referencing,

relating to, about or regarding each other. It is understood and agreed that this is a

material term of this Agreement and that any breach at all of this term shall constitute a 

 

3 Defendant declared that he was “involved in the creation of” the bylaws. 
4

material breach. However, this section will in no way prevent [defendant] from testifying 

truthfully pursuant to an enforceable subpoena.”

The separation agreement also included a “Confidentiality of Employer’s 

Information” clause (confidentiality clause) stating in part, “Following the Termination 

Date,

[4]

[defendant] shall neither disclose, nor use, any information of [plaintiff] . . . 

which plaintiff has treated as confidential, proprietary or trade secret (‘Confidential 

Information’) including, but not limited to information technology systems, . . . lists and 

other information concerning customers and potential customers, . . . information that 

could either cause or potentially cause damage or injury to [plaintiff] . . . or employees 

and/or any other information [defendant] reasonably should know is treated as 

confidential by [plaintiff] . . . .” That clause provides defendant may only disclose 

plaintiff’s confidential information under certain circumstances that are not applicable 

here. 

PROCEDURAL BACKGROUND

Plaintiff filed a complaint alleging cause of action for breach of written contract 

(first cause of action); breach of duty of good faith and fair dealing (second cause of 

action); intentional interference with prospective economic advantage (third cause of 

action); trade libel (fourth cause of action); unlawful business practice (fifth cause of 

action); common law unfair competition (sixth cause of action); and temporary and 

permanent injunction (seventh cause of action).5

According to plaintiff’s complaint, defendant made, and worked in concert with 

others to make, “negative statements about [plaintiff], [plaintiff’s] employees and the 

 

4

“Termination Date” is not defined in the separation agreement. It defines 

“Resignation Date” as August 10, 2013, the date on which defendant “voluntarily 

resign[ed] his employment with” plaintiff. Presumably, “Termination Date,” as used in 

the separation agreement, was intended to mean “Resignation Date.”

5

This appeal concerns only the first and second causes of action.
5

quality of education offered by [plaintiff].” Plaintiff alleged in its first cause of action 

that defendant breached the separation agreement because defendant violated the 

nondisparagement and confidentiality clauses contained therein. The first cause of action 

states defendant breached the nondisparagement clause by “making negative, derogatory 

and/or disparaging statements and comments about [plaintiff] and its staff,” including 

statements made about plaintiff on social media sites; and breached the confidentiality 

clause by “using and disclosing confidential, proprietary or privileged information . . . .” 

Plaintiff alleged in its second cause of action that defendant breached the implied 

covenant of good faith and fair dealing contained in the separation agreement.

On December 1, 2014, pursuant to plaintiff’s application, the trial court issued a 

limited preliminary injunction, which injunction provided in part as follows: “Pending 

trial in this action, Defendant . . . and his agents [are] restrained and enjoined 

from . . . [¶] [m]aking negative or disparaging statements or comments about 

[plaintiff’s] officers and directors. The terms officers and directors are defined by 

[plaintiff’s] Articles of Incorporation and Bylaws.” [¶] . . . [¶] [Defendant] will not be 

restrained from . . . [¶] [m]aking negative comments about [plaintiff], its teachers, or 

other non-officer/director employees . . . .” 

Defendant filed an anti-SLAPP motion challenging, inter alia, the first and second 

causes of action, contending these causes of action arise from a protected activity—“any 

written or oral statement or writing made in a . . . public forum in connection with an 

issue of public interest . . . ” (§ 425.16, subd. (e)(3))—and plaintiff cannot establish there 

is a probability it will prevail on these claims. Plaintiff opposed the anti-SLAPP motion.

Plaintiff supported the opposition with, among other things, a declaration from the 

principal of one of plaintiff’s schools stating defendant and those associated with him 

made “false and negative statements about me and the quality of the education provided 

by [plaintiff]. [Defendant] has repeatedly accused me of having a sexual relationship 

with a former [plaintiff] student and giving him alcohol.” Other declarations stated: 

defendant’s “close associate” said plaintiff’s dean of student conduct handed illegal drugs 

to a student; defendant and his “agents” distributed flyers to plaintiff’s students
6

indicating, inter alia, plaintiff was unnecessarily charging students for bus transportation;

defendant and his associates handed flyers to plaintiff’s students and parents stating, inter 

alia, “We want a leadership change (Goodbye to [among others, plaintiff’s chief 

executive officer (CEO), and a principal for one of plaintiff’s schools] who all make over 

$100,000 a year). We want to see all the same teachers, students, and (mostly) programs, 

just run by people who actually care.” 

Plaintiff submitted a declaration from Ari Engelberg, plaintiff’s CEO, stating 

defendant e-mailed a seven-page letter to 200 of plaintiff’s staff at their work e-mail 

addresses. The letter stated, in part, plaintiff’s Board and plaintiff’s CEO, as plaintiff’s 

original president, “watched from the sidelines” when defendant had “a lot of control 

over the decisions and directions of [plaintiff’s] schools”; plaintiff’s CEO (who was also 

plaintiff’s original president) “seemed like a good and smart guy” but soon filled

plaintiff’s Board with his personal friends; when Engelberg became CEO “‘which people 

got to make which decisions’ was completely unclear and chaotic”; “whatever . . . is 

being spent on ‘back-office’ is hurting the actual schools and programs by taking money 

away and diverting it elsewhere”; and the parents want plaintiff’s CEO, and a principal 

for one of plaintiff’s schools, among others, to “step down” and “[t]his is nothing 

personal[—]it’s about too many bad decisions being made and too much covering up of

problems.”

The Engelberg declaration also stated, “I worked with [defendant] to negotiate the 

separation agreement. We went through several drafts of the agreement. Each draft 

contained a provision stating that [defendant] could not disparage [plaintiff]. On the last 

iteration of the agreement, [defendant] asked that we make the nondisparagement 

provision mutual so that [plaintiff] could not disparage him either. Since [plaintiff] 

cannot control what its many other lower level employees might say (including teachers,

janitors, office staff), I agreed that [plaintiff’s] officers and directors would not disparage 

[defendant]. I revised the nondisparagement paragraph to reflect that agreement. 

However, the provision was inadvertently changed to read that [defendant] and 

[plaintiff’s] officers and directors would not disparage each other. Our agreement was 
7

that [defendant] would not disparage [plaintiff] and [plaintiff’s] officers and directors 

would not disparage [defendant].” Plaintiff also submitted declarations from several 

parents stating parents of students attending plaintiff’s schools contacted them by 

telephone asking them to join a group “led by” defendant concerning plaintiff’s schools. 

The trial court denied the anti-SLAPP motion as to the first and second causes of 

action,

6

stating defendant met his burden to show the causes of action arose from a 

protected activity, but plaintiff established there is a probability it will prevail on the 

claims. As to defendant’s causes of action arising from a protected activity, the trial 

court ruled, “[A]t least some of the statements fall within” section 425.16, subsection 

(e)(3) because websites accessible to the public are public forums for purposes of the 

anti-SLAPP statute; and the statements concern “the quality of education, safety of 

students, and administration of a charter school,” which statements “are issues of public 

interest.”

Regarding the probability plaintiff will prevail on the claims, the trial court said 

there is evidence defendant made disparaging statements concerning a principal for one 

of plaintiff’s schools and plaintiff’s dean of student conduct. The trial court continued, 

“Although the separation agreement does not define the term ‘officers,’ that term can be 

reasonably interpreted to include a school principal and a dean for all of plaintiff’s 

schools.”7The trial court also said there is evidence defendant made disparaging 

statements concerning Engelberg, and “it is undisputed that Engelberg is the CEO of 

Plaintiff.” The trial court further ruled plaintiff “points to evidence that Defendant may 

have breached paragraphs 8 and 12 of the separation agreement by sending an email from 

his [school] e-mail account and accessing confidential contact information.” 

 

6

The trial court granted the anti-SLAPP motion as to the fourth cause of action, and 

also denied it as to the third, and fifth through seventh causes of action. 

7

The trial court stated the “nondisparagement” clause “does not expressly prohibit 

negative comments against Plaintiff, so long as such comments are not disparaging of 

officer and directors.” 
8

DISCUSSION

A. Adequate Record 

Defendant failed to provide a reporter’s transcript or a suitable substitute of the 

hearing on his anti-SLAPP motion. We asked the parties to brief whether defendant’s 

failure to do so warrants affirmance based on the inadequacy of the record. 

Defendant contends, and plaintiff agrees, that a reporter’s transcript of the hearing 

is not required because, as noted below, the issue in this appeal—the trial court’s denial 

of a portion of defendant’s anti-SLAPP motion—is reviewed de novo. (Chodos v. Cole

(2012) 210 Cal.App.4th 692, 700.) We agree.

B. Anti-SLAPP Motion 

1. Standard of Review

We review de novo the trial court’s order denying an anti-SLAPP motion. 

(Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326; Christian Research Institute v. Alnor

(2007) 148 Cal.App.4th 71, 79.) “‘We consider “the pleadings, and supporting and 

opposing affidavits . . . upon which the liability or defense is based.” (§ 425.16, subd. 

(b)(2).) However we neither “weigh credibility [nor] compare the weight of the 

evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and 

evaluate the defendant’s evidence only to determine if it has defeated that submitted by 

the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Flatley v. Mauro, supra, 39 

Cal.4th at p. 326.)

2. Applicable Law

“‘A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or 

punish a party’s exercise of constitutional rights to free speech and to petition the 

government for redress of grievances. [Citation.] The Legislature enacted Code of Civil 

Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural 
9

remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional 

rights. [Citation.]’ [Citation.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 34.) “The 

goal [of section 425.16] is to eliminate meritless or retaliatory litigation at an early stage 

of the proceedings.” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 

806.)

Section 425.16, subdivision (b)(1) provides, “A cause of action against a person 

arising from any act of that person in furtherance of the person’s right of petition or free 

speech under the United States Constitution or the California Constitution in connection 

with a public issue shall be subject to a special motion to strike, unless the court 

determines that the plaintiff has established that there is a probability that the plaintiff 

will prevail on the claim.” (§ 425.16, subd. (b)(1).) In considering the application of the

anti-SLAPP statute, courts engage in a two-step process. “‘First, the court decides 

whether the defendant has made a threshold showing that the challenged cause of action 

is one arising from protected activity. . . . If the court finds such a showing has been 

made, it then determines whether the plaintiff has demonstrated a probability of 

prevailing on the claim.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 712.) 

“‘“‘The defendant has the burden on the first issue, the threshold issue; the plaintiff has 

the burden on the second issue. [Citation.]’ [Citation.]” [Citations.]’” (Rohde v. Wolf, 

supra, 154 Cal.App.4th at pp. 34-35.) “Only a cause of action that satisfies both prongs 

of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks 

even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier 

v. Sletten (2002) 29 Cal.4th 82, 89; Governor Gray Davis Com. v. American Taxpayers 

Alliance (2002) 102 Cal.App.4th 449, 456.)

3. Analysis

a) Protected Activity

Defendant contends the challenged causes of action arise from a protected activity 

pursuant to section 425.16, subd. (e)(3)—“any written or oral statement or writing made 
10

in a . . . public forum in connection with an issue of public interest . . . .” (§ 425.16, subd. 

(e)(1).) We agree.

i) Public Forum

“Under established authority, when a cause of action is based on both protected 

and unprotected activity, it is subject to the anti-SLAPP statute, unless the protected 

activity is merely incidental to the unprotected conduct. [Citations.]” (Kenne v. Stennis

(2014) 230 Cal.App.4th 953, 967, italics added.) In Haight Ashbury Free Clinics, Inc. v. 

Happening House Ventures (2010) 184 Cal.App.4th 1539, the court held that a cause of 

action alleging breach of fiduciary duty satisfied the first prong of the anti-SLAPP 

statute, even though only two of 16 factual bases of the cause of action targeted protected 

activity. The other 14 factual bases targeted nonprotected activity. (Id. at pp. 1544-1545, 

1548-1553.) The court explained that the two factual bases targeting protected activity 

“could each be the sole and adequate basis for liability under the cause of action,” and for 

this reason were not “merely incidental” to the numerous additional allegations targeting 

nonprotected activity. (Id. at p. 1551.) “[A] plaintiff cannot frustrate the purposes of the 

[anti-]SLAPP statute through a pleading tactic of combining allegations of protected and 

nonprotected activity under the label of one ‘cause of action.’” (Fox Searchlight 

Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) 

For purposes of the anti-SLAPP legislation, “‘[a] “public forum” is . . . defined as 

a place that is open to the public where information is freely exchanged.’ [Citation.]” 

(Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1087.) “The [anti-SLAPP] statute does 

not limit its application to certain types of petition activity. The Legislature recognized 

that ‘all kinds of claims could achieve the objective of a SLAPP suit—to interfere with 

and burden the defendant’s exercise of his or her rights.’” (Beilenson v. Superior Court

(1996) 44 Cal.App.4th 944, 949, quoting Church of Scientology v. Wollersheim (1996) 42 

Cal.App.4th 628, 652, overruled on other grounds in Equilon Enterprises v. Consumer 

Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.)
11

Arguably, there was a factual basis underlying the first and second causes of 

action that pertained to statements not made in a public forum, i.e., statements made in an 

email. However, other grounds, i.e., statements made in flyers and on social media 

websites, are indicative of public speech. 

First, plaintiff alleged flyers were offered to those who appeared to be either (a) 

students at the school; or (b) parents of those students. The record demonstrates these 

flyers were handed out “on or near the school.” However, there is nothing in the record 

to suggest the recipients of the flyers were verified students and their parents. Rather, the 

record suggests anyone who appeared to be students or parents were offered flyers. 

Handing out flyers to passersby who appear to be students of a nearby school, or parents 

of those students, constitutes speech in a public place where information is freely 

exchanged. (See e.g., Macias v. Hartwell (1997) 55 Cal.App.4th 669, 674 [mailing of 

campaign flyers recognized as public forum].) 

Second, the first and second causes of action alleged, respectively, defendant made 

disparaging statements on “social media” and “Facebook,” and “encouraged others . . . to 

repeat these false statements.” At oral argument, plaintiff’s counsel identified the 

Facebook information as “posts,” subjected to being “liked” by visitors to the webpage. 

It is clear the social media information did not constitute private messaging. These 

statements were thus made in a public forum. (See ComputerXpress, Inc. v. Jackson

(2001) 93 Cal.App.4th 993, 1001-1002; Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 

4 [statements made on websites readily accessible to the public are deemed statements 

made in a public forum]; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576.)

ii) Public Interest

The term “issue of public interest” under section 425.16, subdivision (e), is 

interpreted broadly. (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 716.) 

There is no requirement that the issue be “significant.” (Nygard, Inc. v. Uusi-Kerttula

(2008) 159 Cal.App.4th 1027, 1042.) ‘“‘[A]n issue of public interest” within the 

meaning of section 425.16, subdivision (e)(3) [and by virtue of identical language, 
12

subdivision (e)(4),] is any issue in which the public is interested.’ [Citation.]” (Rivera v. 

First DataBank, Inc., supra, 187 Cal.App.4th at p. 716.) In determining whether a matter 

is of public interest within the meaning of section 425.16, “[w]e look for ‘the principal 

thrust or gravamen of the plaintiff’s cause of action.’ . . . The ‘critical consideration’ is 

what the cause of action is ‘based on.’” (Hecimovich v. Encinal School Parent Teacher 

Organization (2012) 203 Cal.App.4th 450, 465.)

Here, the principal thrust of the first and second causes of action centers on 

statements defendant made relating to the quality of the education provided by plaintiff, 

the safety of plaintiff’s students, and the proper administration of school policy. For 

example, plaintiff contends defendant stated, among other things, one of the school 

principals had engaged in inappropriate sexual behavior with a former student; a teacher 

with a record of drunk driving was allowed to drive the students without notice to the 

parents; drugs confiscated from a student were not properly handled or reported;

plaintiff’s school unnecessarily charged students for bus transportation; and the academic

quality of the schools was deteriorating. 

As noted by the trial court, the statements made by defendant concern “the quality 

of education, safety of students, and administration of a publicly funded charter school,”

which statements “are issues of public interest.” (Plyler v. Doe (1982) 457 U.S. 202, 

221-222 [“education has a fundamental role in maintaining the fabric of our society”]; 

Brown v. Bd. of Educ. (1954) 347 U.S. 483, 493 [“education is perhaps the most 

important function of state and local governments”]; Hecimovich v. Encinal School 

Parent Teacher Organization, supra, 203 Cal.App.4th at p. 468 [safety in youth sports

and “problem coaches/problem parents” in youth sports are issues of public interest]; 

Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1436-1439 

[school superintendent’s critical statements about a school principal on whose campus 

incidents of racially motivated student violence had occurred were statements about “an 

issue of public interest”]; McGarry v. University of San Diego (2007) 154 Cal.App.4th 

97, 109-110 [statements by university officials explaining why the head football coach 

was terminated were statements about “an issue of public interest”]; Ghafur v. Bernstein
13

(2005) 131 Cal.App.4th 1230, 1238 [“‘Clearly, the governance of a public school system 

is of the utmost importance to a community, and school board policies are often carefully 

scrutinized by residents’”].)

b) Probability of Prevailing on Merits

In the context of defendant’s anti-SLAPP motion, plaintiff has not demonstrated a 

probability of prevailing on the merits. To do so “plaintiff must show that the complaint 

is legally sufficient and must present a prima facie showing of facts that, if believed by 

the trier of fact, would support a judgment in the plaintiff’s favor. [Citations.] The 

plaintiff’s showing of facts must consist of evidence that would be admissible at trial. 

[Citation.] The court cannot weigh the evidence, but must determine whether the 

evidence is sufficient to support a judgment in the plaintiff’s favor as a matter of law, as 

on a motion for summary judgment. [Citations.]” (Hall v. Time Warner, Inc. (2007) 153 

Cal.App.4th 1337, 1346; see College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 

704, 719, fn. 5; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

There is no evidence defendant disparaged any of plaintiff’s officers or directors. 

Plaintiff is a non-profit corporation. Defendant was one of the founders of plaintiff and 

he assisted in creating the bylaws. The terms “officers” and “directors” are proscribed in 

the Corporations Code (Corp. Code, §§ 301 [election of directors], 312 [identifying 

officers required for a corporation include “chairperson of the board,” “secretary,” and 

“chief financial officer”], and plaintiff’s bylaws define officers and outline how they are 

selected. Plaintiff has failed to produce any evidence that anyone it contends was 

disparaged by defendant in violation of the nondisparagement clause were officers and 

directors at the time of the alleged disparagement. 

Plaintiff contends because the separation agreement does not define “officers” or 

“directors,” those terms can be reasonably interpreted under their dictionary definitions to 

include, for purposes of the challenged cause of actions, plaintiff’s school principal, the 

dean for all of plaintiff’s schools, and plaintiff’s CEO. We disagree. 
14

Although the first cause of action alleged defendant made disparaging statements 

about “[plaintiff] and its staff,” the second cause of action merely alleged defendant made 

disparaging statements about plaintiff only. The second cause of action does not allege 

defendant made disparaging statements about plaintiff’s staff, including the school 

principal, the dean for all of its schools, and the CEO. Because plaintiff did not seek, nor 

did the trial court authorize plaintiff, to amend the second cause of action to allege 

defendant made disparaging statements about plaintiff’s staff (Nguyen-Lam v. Cao (2009) 

171 Cal.App.4th 858, 873, we need not consider whether plaintiff’s school principal, the 

dean for all of plaintiff’s schools, and plaintiff’s CEO are officers or directors for 

purposes of the second cause of action.

Moreover, plaintiff’s bylaws do not include as an officer or director plaintiff’s 

school principal, its dean, or plaintiff’s CEO.8The separation agreement does not 

prevent defendant from making negative statements about plaintiff, its teachers, or other 

non-officer/director employees. 

We also reject plaintiff’s contention that a disparaging statement about plaintiff is 

a statement regarding all of its officers and directors. Under plaintiff’s interpretation, it 

 

8

Engelberg declared he was the CEO. However, this was insufficient to establish 

he was an “officer” covered by the nondisparagement clause of the separation agreement. 

The officers of a corporation are identified in the Corporations Code as (1) a board 

chairperson; (2) a secretary; (3) a chief financial officer; and (4) any other officer “stated 

in the bylaws or determined by the board . . . .” (Corp. Code, § 312, subd. (a).) “The 

president, or if there is no president[,] the chairperson of the board, . . . is the chief 

executive officer.” (Ibid.) Thus, under the Corporations Code, the CEO is an officer if 

(a) he or she is acting as CEO by virtue of the fact that he or she is also the president or 

board chairperson, or (b) the bylaws or the board determines the CEO to be an officer.

Engelberg’s declaration indicated he was the CEO after he finished his stint as 

board chairman; and, he did not declare he was president at the time defendant’s 

statements were made. Thus, the only way he could have been an officer for purposes of 

this litigation was if the bylaws listed the CEO as an officer or there was board action that 

created the CEO position and determined the CEO was an officer within the meaning of 

the bylaws. As we have stated, the bylaws omitted any reference to the CEO as an 

officer of the corporation. In addition, we have no record of any action by the board 

regarding the creation of a CEO or the inclusion of a CEO as an officer. Plaintiff did not 

satisfy its burden of demonstrating Engelberg was an officer.
15

appears virtually any statement about plaintiff would constitute a statement regarding all 

of its officers and directors. In addition, plaintiff concedes the nondisparagement clause 

“was inadvertently changed” so as not to memorialize the actual agreement that 

“[defendant] would not disparage [plaintiff] and [plaintiff’s] officers and directors would 

not disparage [defendant].” As the trial court stated, there is no evidence plaintiff 

reformed the separation agreement, and plaintiff “fail[ed] to show that the agreement can 

be interpreted to prohibit comments solely about Plaintiff.”

Plaintiff also argues defendant breached the separation agreement because in 

violation of the confidentiality clause, defendant improperly used and disclosed 

plaintiff’s confidential information. That clause prohibits defendant from disclosing or 

using plaintiff’s information “which plaintiff has treated as confidential, propriety or 

trade secret . . . .” Plaintiff does not cite to any evidence in the record that immediately 

before defendant allegedly used or disclosed the information it contends was in violation 

of the separation agreement, plaintiff treated that information as confidential. Therefore, 

plaintiff’s argument is forfeited. (Magic Kitchen LLC v. Good Things Internat., Ltd. 

(2007) 153 Cal.App.4th 1144, 1161-1162; Moulton Niguel Water Dist. v. Colombo

(2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to 

support them with reasoned argument and citations to authority”]; Badie v. Bank of 

America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant . . . . fails to support 

[a point] with reasoned argument and citations to authority, we treat the point as 

waived”].) 
16

DISPOSITION

The order denying the motion to strike plaintiff’s first two causes of action is 

reversed. Defendant is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KUMAR, J.

We concur:

KRIEGLER, Acting P. J.

BAKER, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.