Filed 2/8/16 Bright Star Schools v. Hilger CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JEF F HILGER ,
Defendant and Appellant

. B26 3844
(Los Angeles County Super. Ct. No. B C562012)

APPEAL from a n 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 Appe llant. 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 425.16 1 (anti

- SLAPP statute 2 ) special motion to strike. Defendant contends the trial court erred in denying his anti

SLAPP motion as to the first and second causes of action because they arise f rom 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 w as 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. P laintiff is a non

- profit corporation organized and existing under the laws of the
State of California. Plaintiff o perates 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 ) provide s 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 sel ected, 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, exce pt 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, su ch 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
d uties as are provided in these Bylaws or as the Board may from time to time
determine. [¶]

. . . [¶] S ection 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 By l aws for regular election or appointment to such office, provided
that such vaca ncies shall be filled as they occur and not on an annual basis .” 3
From mid

- 2008 through 20 12, defendant supervised the “academic aspects” of plaintiff. On August 13, 2013, after defendant returned from a one

- year sabbatical, plaintiff and defendant ent ered into a Separation and Release Agreement ( separation

a greement). 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 agreemen t included a “non disparagement clause ” stat ing
,

“ [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 e ach 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 b ylaws

.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 i nfor mation of [plaintiff]

. . . which plaintiff has treated as confidential, propriet ar y or trade secret (‘Confidential Information’) including, but not limited to information technology systems,

. . . lists and
other information concerning customers and poten tial 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 clau se prov ides 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 caus e 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 li bel (fourth cause of action); unlawful business practice (fifth cause of

act ion); common law unfair competition (sixth cause of action); and temporary and permanent injunction (seven th cause of action). 5 According to plaintiff’s complaint, defendant made, and worked in concert with others to make, “negative statements about [pla intiff], [plaintiff’s] employees and the

4 “Termination Date” is not defined in the separation agreement. It defines “Res ignation Date” as August 10, 2013, the date on which defendant “voluntarily resign[ed] his employment with” plaintiff. Pre sumably, “Termination Date,” as used in the separation agreement, was intended to mean “Resignation Date.”

5 This appeal concerns o nly 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

non disparag ement and confidentiality clau ses contained therein. The first cause of action

states defendant breached the non disparagement clause by “ making negative, derogatory
and /or disparaging statements and comments about [ plaintiff ] and its staff,” including statements made about plaintiff o n social media sites ; and breach ed the confidentiality
clause by “using and disclosing confidential, proprietar y 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

. O n 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, Defen dant

. . . and his agents [are] restrain ed 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 Incorpor ation and Bylaws.” [¶]

. . . [¶] [Defendant] will not be

r estrained from

. . . [¶] [m] aking negative comments about [plaintiff], its teache r s, or other non

- officer/director employees

. . . .”
Defendant filed an anti

- SLAPP motion challenging, inter al ia, the first and second
causes of action
, conten ding the se causes of action arise from a protected activity

— “ any written or oral statement or writing made in a

. . . public forum in connection w ith an issue of public interest

. . . ” (§ 425.16, subd. ( e)( 3 ))

— and plaintiff cannot establish there is a probability it will prevail on the se claim s. Plaintiff opposed the anti

- SLAPP motion

. Plaintiff suppor ted the opposition with, among other things , a declaration from the principal of one of plaintiff’s schoo ls 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] stude nt and giving him alcohol.” Other declaration s stated:
defe ndant’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 students6

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

e xecut ive o fficer ( 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 En gelberg , 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 plain tiff’s CEO
, as plaintiff’s original p resident
, “watched from the si delines” when defendant had “a lot of control over the decisions and directions of [plaintiff’s] schools ” ; p laintiff’s CEO (who was also plaintiff’s original president) “ seemed like a good and smart guy ” but soon filled plaintiff’s B oard with his personal friends ; w hen 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 elsewh ere ” ; and the parents want plaintiff’s CEO, and a principal for one of plaintiff’s schools, among others, to “ step d own ” and “[t]his is nothing personal[

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

. ”
The Engelberg declar ation 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 non disparagement 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] off icer s and directors would not disparage [defendant]. I revised the non disparagement paragraph to reflect that agreement

. However, the provision was inadvertently changed to read that [defendant] and [plaintiff’s] o fficers and directors would not disparage each other. Our agreement was7

that [defendant] would not disparage [plaintiff] and [plaintiff’s] officers and directors would not disparage [defendant].” Plaintiff also submitted declarations fr om 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 establish ed there is a probability it will prevail on the
claim s. As to defendant ’s causes of action arising from a protected activity, the tri al
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, safe ty of students, and administration of a charter school
, ” which statements “are issues of public
interest

. ” Regarding the probability plaintiff will prevail on the claim s , the trial co urt said
there is evidence defendant made disparaging statements concer ning a principal for one of plaintiff’s schools and plaintiff’s dean of s tudent c onduct. The trial court continued, “Although the separation agreement does not define the term ‘officers,’ that term can be reasonably interpreted to include a school princip al and a dean for all of plaintiff’s
schools.” 7 The 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 th r ough seven th 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 a nti

- SLAPP motion. We asked t he parties to brief whether defendant’s failure to do so warrants affirmance based on the inadequacy of the record. Defendant contends, and p laintiff 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. 4 th 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] a ccept as true the evidence favorable to the plaintiff [citat ion] and evaluate the defendant’ s evidence only to determine if it has defeated that submitted by
th e plaintiff as a matter of law.” [Citation.] ’ [Citation.] ” ( Flatley v. Mauro
, supra , 39
Cal.4 th at p. 326.)

2. Applicable Law

“ ‘A SLAPP suit

— a strategic lawsuit against public participation

— seeks to ch ill 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 procedural9

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, subd ivision (b)(1) provides , “A cause of action against a person arising from any act of that pers on 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 sub ject 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 t he
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 p laintiff 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 s peech or petitioning and lacks
even minimal merit

— is a SLAPP, subject to being stricken under the statute.” ( Navellier
v. Sletten (20 02) 29 Cal.4th 82, 89 ; Governor Gray Davis Com. v. American Taxpayers
Alliance (2002) 102 Cal.A pp.4th 449, 456 .)

3

. Anal

ysis

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 made10

in a

. . . public forum in connection w ith an issue o f 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

a ctivity 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 base s targeting protected activity

“ could each be the sole and adequate basis for liabi lity under the cause of action,” and for
this reason were not “ merely incidental ” to the n umerous additional allegations targeting nonprotected activity. ( Id . at p. 1551.) “[A] plaintiff canno t frustrate the purposes of the [anti

- ]SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected a ctivity 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 an t i

- 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 (2 011 ) 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., statemen ts 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 su ggests 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 exchange d. (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” a nd “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 infor mation 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 r eadil y accessible to the public are d eemed statements made in a public forum]; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576.)

i i) Public Interest The term “issue of public interest” under section 425.16, subdivision (e), is interpreted bro adly. ( Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 716.)
T here is no requirement th at 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 matt er 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 .’

. . . T he ‘ critical consideration ’ is
what the cause of action is ‘ based on

. ’ ” ( Hecimovich v. Encinal Sc hool 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 plain tiff’s students, and the proper administration of school policy. For example, p laintiff contends defendant stated , among other things, one of the school principals had engaged in inappropriate sexual b ehavior with a former student; a teacher
with a record of drunk driving was allowed to drive the students without notice to the parent s ; drugs confiscated from a student were not properly handled or reported; plaintiff’s school unnecessarily charge d students for bus transportation ; and the academic quality of the school s was deteriorating

. As noted by the trial court, t he statements made by defendant concern “the quality of education, safety of students, and administration of a publicly funded charter school, ”
which statements “are issues o f 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 [“ e ducation 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. 46 8 [ safety in youth sports and “ problem coaches/problem parents ” in youth sports are issue s of public interest ]; Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1 436

- 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 te rminated were statements about “an issue of public interest” ]; Ghafur v. Bernstein13

(2005) 131 Cal.App.4th 1230, 1238 [ “‘ Clearly, t he 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, p laintiff has not demonstrate d a probability of prevailing on the merits. To do so “ p laintiff 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 judgmen t 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 supp ort a ju dgment 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 Conta cts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)
There is n o evidence defendant disparaged any of plaintiff’s officer s or director s

. P laintiff is a non

- profit corporation

. Defendant was one of the founders of plaintiff and he assisted in creating the b ylaws

. T he terms “officer s ” and “director s ” 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 financi al officer”] , and p laintiff’s b ylaws define officers and outline how t hey are
selected. Plaintiff has failed to produce any evidence that anyone it contends was disparaged by defendant in violation of the non disparagement clause were officers and
director s at the time of the alleged disparagement.
Plaintiff contends because the separation agreement does not define “officer s ” or “director s ,” th ose terms can be reasonably interpreted under their dictionary definitions to
include
, for purposes of the challe nged 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,” t he secon d cause of action merely allege d 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
, 8 73, 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 d irector plaintiff’s school principal, its dean, or plaintiff’s CEO. 8 The 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 Eng e lberg declared he was the CEO. However, this was insufficient to establish he was an “officer” cover ed 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 bylaw s 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 determine s the CEO to be an officer. Engelberg’s declaration indicated he was the CEO after he finished his s tint 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 boa rd 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 Eng el berg was an officer.15

appears virtually any statement about plaintiff would constitute a statement regarding all
of its offi cers and directors. In addition, p laintiff concedes the non disparagement 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 dispa rage [defendant].” As the trial court stated , there is no evidence plaintiff
reform ed 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 c onfidentiality 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 separ ation agreement
, plaintiff treated that information as confidential

. Therefore,

p laintiff ’ 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 (200 3) 111 Cal.App.4th 1210, 1215 [“ Contentions are waived when a party fails to support them with reasoned argu ment 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 TH E 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

ar ticle VI, section 6 of the California Constitution.