Filed 2/26/13 Jacobsen v. Palamdale School Dist. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LYNETTE JACOBSON,

Plaintiff and Respondent,

v.

PALMDALE SCHOOL DISTRICT 

et al.,

Defendants and Appellants.

 B239582

 (Los Angeles County

 Super. Ct. No. MC022822)

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

Randolph A. Rogers, Judge. Reversed and remanded with directions.

Carpenter, Rothans & Dumont, Justin Reade Sarno and Louis R. Dumont for 

Defendants and Appellants.

Law Office of Brian E. Reed and Brian E. Reed for Plaintiff and 

Respondent.
2

INTRODUCTION

Lynette Jacobson (Jacobson) is a third grade teacher at Ocotillo Elementary 

School in the Palmdale School District (District). Roger Gallizzi (Gallizzi) is the 

Superintendent of the District. At a public meeting of District‟s Board of Trustees 

(Board), Jacobson spoke (as did three other individuals) against a proposed change 

to District‟s field trip policy.

Three months later at the beginning of the school year, Gallizzi delivered a 

“Welcome Back” message to District‟s teachers, staff, students and parents in 

which he expounded upon the theme that an educator‟s primary responsibility is to 

create a learning environment for the students. In that context, Gallizzi referred to 

four incidents in which he believed teachers had acted unprofessionally. He gave, 

as one example, Jacobson‟s remarks from Board‟s public meeting, comparing her 

attitude to that held by Scar, a character in “The Lion King.”

Jacobson sued Gallizzi and District (collectively defendants), alleging that 

Gallizzi‟s remarks were, among other things, defamatory. Defendants moved to 

strike Jacobson‟s complaint pursuant to section 425.16.1 Their anti-SLAPP 

motion2urged that the gravamen of Jacobson‟s complaint arose out of Gallizzi‟s 

constitutionally protected communications on issues of public interest and that 

Jacobson could not demonstrate a probability of prevailing on her action. The trial 

court denied the motion, finding that defendants had failed to demonstrate that 

Gallizzi‟s “Welcome Back” message was made in furtherance of his constitutional 

right to free speech.

 

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

noted to the contrary.

2

“SLAPP” is an acronym for “strategic lawsuit against public participation.” 

(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
3

This defense appeal follows. First, we find that Gallizzi‟s message 

addressed issues of public interest: the goal of public education, the role teachers 

play in reaching that goal, and District‟s new field trip policy. Second, we find 

that Jacobson failed to demonstrate a probability of prevailing on her claims 

because Gallizzi‟s message was subject to the absolute privilege accorded 

statements made by a government official in proper discharge of his official duties. 

(Civ. Code, § 47, subd. (a) (hereafter section 47).) We therefore reverse the trial 

court‟s order and direct it to grant the special motion to strike, to dismiss the 

complaint with prejudice, and to award attorney fees to the defense. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts Underlying Jacobson’s Lawsuit3

As Superintendent, Gallizzi is responsible for District‟s overall operations. 

This includes overseeing the day-to-day management of District and “ensuring that 

all operations of the district are designed to provide rigorous academic challenges 

and rigorous expectations of student achievement, facilitating the success of each 

student.” In addition, he “maintain[s] and lead[s] an appropriate community and 

media relations program” and, “as part of [his] official duties,” he “respond[s] to 

comments or criticisms from parents, teachers, administrators, or other community 

members.”

According to Gallizzi, the subject of school field trips had “been a topic of 

concern and conversation in the community for several years.” The issues include 

the cost and funding of the trips, the educational value of the trips, and “the equity 

or inequity of the number of field trips that certain schools were taking in the 

 

3

These facts are gleaned from Jacobson‟s complaint and the evidence offered in 

regard to the motion to strike.
4

district compared to others.” In regard to the latter concern, Gallizzi had “sought 

feedback from the various school sites and PTA groups, as well as members of the 

community.” Gallizzi‟s Advisory Committee (the Committee) had discussed the 

issue several times. The Committee, comprised of members of the Parent Teachers 

Association and “a parent representative from the school community,” “provides 

input to [Gallizzi‟s] office and the Board of Trustees, which assists [their] efforts 

in shaping policy for the school district.” By June 2010, the Committee 

recommended to the Board “to curtail the number of field trips since an equitable 

solution could not be reached.”

On June 15, 2010, the Board conducted a public meeting that Gallizzi 

attended. Towards the end of the meeting, several individuals asked to address the 

Board about “non-agenda items.” One such item was the Committee‟s proposed 

change to the field trip policy. One parent, one student, and two teachers (one of 

whom was Jacobson) spoke against the proposal. 

Jacobson identified herself as “a community member, tax payer, parent, 

child advocate, and lastly a teacher [at Ocotillo Elementary School] in the 

Palmdale School District.” She stated that she was concerned about District‟s 

“recently announced policy” “to cancel almost all field trips for the coming school 

years, regardless of funding source.” According to Jacobson, two rationales for 

this change had been advanced: inadequate funding at some schools and 

“fairness.” After explaining how she believed adequate funding could be assured, 

Jacobson stated: 

“More pressing, the issue of fairness has risen as the second 

obstacle to field trips in [our District]. Let’s just state up front, life 

isn’t fair. It wasn‟t fair that for several years [our] District has had 

some failing schools. It isn‟t fair that schools may now apply for 

million dollar grants that, if granted, will bring tremendous resources 

to only those schools. Grants by their very nature are not fair. Two of 
5

my students went to the District Spelling Bee. One received the word 

judiciary, while the other had to spell glimpse. Not so fair?

“The bottom line is that our country has been built on hard 

work and determination. Americans have always worked hard for 

what they achieve, and a sense of fulfillment is derived from reaching 

a goal. Isn‟t that one of the basic values we try to instill in our 

students? Hard work will get you ahead, as opposed to waiting 

around for someone to hand you something.

“Teachers, parents, and students work hard to raise money for 

such field trips at Ocotillo [Elementary School]. Yes, we do have

some PTA fund raisers. We make requests for support from local 

businesses. Each year Supervisor Antonovich donates money to our 

school. But . . . we have to put the work into asking. We have 

teachers who have collected plastic bags, and we recycle at Ocotillo.

“I would be more than happy to share any of these ideas with 

colleagues.” (Italics added.) 

Jacobson ended by explaining the benefits of field trips.4

After the four speakers had concluded their remarks, Board‟s President 

(Mark Gross) “directed” “Gallizzi and staff to give due consideration to the 

comments.” 

Gallizzi convened a meeting of the Committee. According to Gallizzi, “after 

due consideration and diligence was given to the matter, it was determined that the 

best course of action for the school district was to pare back the number of field 

trips in order to ensure greater equality for all of our students.”

At the beginning of the 2010-2011 school year, Gallizzi authored a 

“Welcome Back” message. The message was a mission statement that, among 

other things, “communicated [the] decision” to change the field trip policy. The 

 

4

Jacobson‟s remarks were recorded in the minutes of Board‟s meeting. 
6

message was distributed on a DVD that all teachers were required to watch. 950 

teachers heard the DVD. In addition, Gallizzi‟s message was “published and 

circulated” “to the entire group of employees of the Palmdale School District as 

well as many parents and students.”

Gallizzi‟s annual message addressed District‟s responsibility to create a 

learning environment for students. His theme was “Learning for all, every child, 

every day.” (Capitalization omitted.) He explained: “When it comes to student 

learning, we can‟t sit back and do nothing. That is the moral imperative, that is our 

moral responsibility.” After elaborating on his theme, Gallizzi stated that he felt 

“compelled to share some very unprofessional remarks and actions [he] witnessed 

[from teachers] in the past year” that he believed were contrary to or undermined 

District‟s duty to create a learning environment for all students. First, Gallizzi read 

a message that he had received from the leadership team at one school that stated: 

“We do not believe it is our job to create student learning.” Next, Gallizzi said that 

he had “heard a group of teachers in a meeting blame only students for low test 

scores.” After that, he explained that he had “heard a teacher, in a staff meeting 

say that expecting learning for all at high levels is like trying to teach Mandarin to 

a cafeteria bench.” Gallizzi stated: “I know that this is not how most of us think. 

But what is troubling is that to both of these outbursts no one responded. No one 

said anything. I am confident that the room full of professionals was shocked into 

silence at the statements and this was not a silence in agreement.” Lastly, Gallizzi 

turned to the controversy surrounding District‟s field trip policy. He stated: 

“Finally, while trying to discern the proper approach to the 

dilemma of the equity situation regarding field trips, my Cabinet and I 

approached this from a point of view where everyone would be on a 

level playing field. Some schools have 20 times more field trips than 

others. Public education is not a place for haves and have nots. It is 

the great social equalizer in the words of Horace Mann. Much to our 

surprise, that is not how some felt. At a board meeting, staff came to 
7

the podium and basically said, like the character Scar in The Lion 

King that life is not fair, and those children and parents at those 

schools need to be taught that lesson and should also be taught to 

work harder. It makes me wonder that, if they felt comfortable 

enough to say that in a public forum, then what do they say in the staff 

lounge, and what do they feel in their hearts? Field trips are 

opportunities for learning and there cannot be an opportunity gap in 

public education. Oh, and all of us in the board room were silent and 

I take responsibility and publicly apologize for that. [¶] We need to 

reflect as professionals why we remain silent to such sentiments. . . . 

[¶] This is the place to be if you believe in learning for all.” (Most 

italics added, boldface omitted.) 

2. Jacobson’s Lawsuit

In August 2011, Jacobson filed suit against Gallizzi and District based upon 

the contents of the “Welcome Back” message.5 She alleged causes of action for 

libel, slander, intentional infliction of emotional distress, invasion of privacy, and 

improper retaliation for having exercised her First Amendment rights. In pertinent 

part, she alleged: 

“Defendant Gallizzi, in essence, published the statement that 

led those who read, saw and heard his videotaped „welcome‟ speech, 

to believe that [Jacobson] was telling students and parents that it was 

their fault there were not going to be any field trips because they 

needed to work harder. Defendant Gallizzi likened [Jacobson] to 

„Scar‟ from The Lion King and went on to explain that conduct like 

[Jacobson‟s] was unacceptable and troubling.” 

“However, by what defendant Gallizzi said to literally hundreds 

of individuals, it was clear that he was retaliating against [Jacobson] 

by referring to her as a character in a popular movie, a character that 

was cruel, heartless and unsympathetic.”6

 

5

Prior to initiating the lawsuit, Jacobson filed a Tort Claim which District denied. 

6

In her opposition to the special motion to strike, Jacobson summarized the 

Wikipedia entry about Scar as follows. Scar was “a psychotic character concerned with 
8

Jacobson sought compensatory and punitive damages. 

3. The Special Motion to Strike

Citing section 425.16, defendants moved to strike Jacobson‟s complaint. 

The defense evidence included the minutes of Board‟s June 15, 2010 meeting, a 

declaration from Gallizzi, and a transcript of his “Welcome Back” message.

Jacobson‟s opposition included declarations from three teachers, each of 

whom averred that they recognized Jacobson as the individual referred to in 

Gallizzi‟s message and were shocked by his comments. A declaration from 

Jacobson explained her position on field trips and opined at length about Gallizzi‟s 

motive and intent in referring to her in the “Welcome Back” message. Jacobson 

also furnished a transcript of her June 15, 2010 remarks at Board‟s meeting and a 

Wikipedia entry about Scar. (See fn. 6, supra.) Lastly, Jacobson tendered copies 

of District‟s civility policy and an administrative regulation, both of which 

Jacobson claimed that Gallizzi had violated. 

 

gaining power and would kill anyone he saw as competition. Scar plotted the murder of 

his own brother and nephew and followed through with little remorse. Scar was a 

narcissist and is most likely an archetype of King Claudius, the villain from Hamlet and 

was inspired by the real life German dictator, Adolf Hitler. In the song „Be Prepared,‟ in 

which Scar sings to the hyenas about how he will kill Mufasa (his brother) and become 

King, there is a scene where Scar sits on a high up rock watching the hyenas march 

along. This is very similar to the Nazi film, Triumph of the Will.

“Scar pushes his brother off a cliff to his death in order to become King and uses 

the same tactic on his nephew, Simba.” 

Jacobson concluded: “The point is that by equating [me] to being Scar, Defendant 

Gallizzi was saying [I] was a vile, despicable person.” 
9

4. The Trial Court’s Ruling

The trial court ruled that the defense had “failed to meet their burden to 

demonstrate that Defendant Gallizzi‟s Welcome Back message was made in 

furtherance of his constitutional right to free speech” and therefore denied the 

special motion to strike.7,8

 

7

Each party filed written evidentiary objections to its opponent‟s evidence. The 

trial court‟s posted tentative ruling did not rule upon any of these objections. Counsel 

pointed out this omission during the subsequent hearing but the judge still failed to make 

any ruling. 

Reid v. Google, Inc. (2010) 50 Cal.4th 512 held, in the context of a summary 

judgment motion, that when the trial court “fails to rule expressly on specific evidentiary 

objections, it is presumed that the objections have been overruled, the trial court 

considered the evidence in ruling on the merits of the summary judgment motion, and the 

objections are preserved on appeal.” (Id. at p. 534, italics added.) Defendants urges that 

the same principle should apply when an appellate court reviews the trial court‟s ruling 

on an anti-SLAPP motion. In other words, defendants claim that their objections are 

preserved and that they are entitled to a de novo review of the trial court‟s implicit 

overruling of those objections. Assuming arguendo that defendants are correct on this 

point, that principle does not benefit them in this case. Defendants have failed to identify 

any specific objections they believe were improperly overruled and to argue that they 

were prejudiced as a result. This constitutes a forfeiture of any appellate argument that 

the trial court erred in implicitly overruling the defense objections to Jacobson‟s 

evidence. (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.)

8 Concurrently with filing their special motion to strike, defendants filed a demurrer 

to Jacobson‟s complaint. The trial court overruled the demurrer to the causes of action 

for libel, slander and invasion of privacy but sustained with leave to amend the demurrer 

to the causes of action for intentional infliction of emotional distress and improper 

retaliation for exercise of First Amendment rights. The propriety of that ruling is not 

before us. For purposes of this appeal, the operative pleading is Jacobson‟s original 

complaint. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 612-

613.)
10

DISCUSSION

A. An Anti-SLAPP Motion

“A special motion to strike is a procedural remedy to dispose of lawsuits 

brought to chill the valid exercise of a party‟s constitutional right of petition or free 

speech. [Citation.] The purpose of [section 425.16] is to encourage participation 

in matters of public significance and prevent meritless litigation designed to chill 

the exercise of First Amendment rights. [Citation.] The Legislature has declared 

that the statute must be „construed broadly‟ to that end.” (Fremont Reorganizing 

Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1165.) 

Section 425.16 “„“establishes a procedure where the trial court evaluates the 

merits of the lawsuit using a summary-judgment-like procedure at an early stage of 

the litigation.”‟” (Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley).) The 

statute posits a two-step process for determining whether a cause of action is 

subject to a special motion to strike. “First, the court decides whether the 

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

arising from protected activity. (§ 425.16, subd. (b)(1).) „A defendant meets this 

burden by demonstrating that the act underlying the plaintiff‟s cause fits one of the 

categories spelled out in section 425.16, subdivision (e)‟ [citation]. If the court 

finds that such a showing has been made, it must then determine whether the 

plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]” 

(Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)

B. The First Step in the Anti-SLAPP Motion: Jacobson’s Claims Arise From

 Protected Activity 

We review de novo the trial court‟s ruling on a special motion to strike. 

(Flatley, supra, 39 Cal.4th at p. 325.) To decide whether defendants discharged 

their burden of demonstrating that Jacobson‟s complaint arose from 
11

constitutionally protected activity, we review the operative pleading and the 

supporting and opposing affidavits offered on the motion to strike. (Brill Media 

Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329-330; see also 

§ 425.16, subd. (b)(2).)

In determining whether a claim arises from protected activity, as defined in 

section 425.16, subdivision (b)(1), the “focus is not the form of the plaintiff‟s 

cause of action but, rather, the defendant‟s activity that gives rise to his or her 

asserted liability -- and whether that activity constitutes protected speech or 

petitioning” as defined in section 425.16, subdivision (e). (Navellier, supra, 29 

Cal.4th at p. 92.) “[W]e disregard the labeling of the claim [citation] and instead 

„examine the principal thrust or gravamen of a plaintiff‟s cause of action to 

determine whether [section 425.16] applies‟ and whether the trial court correctly 

ruled on the . . . motion.” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 

Cal.App.4th 1264, 1272.) In this case, it is clear that Gallizzi‟s “Welcome Back” 

message is the predicate of Jacobson‟s lawsuit regardless of the specific cause of 

action plead.

Protected speech within the meaning of the anti-SLAPP statute includes 

“any other conduct in furtherance of the exercise of the constitutional right of 

petition or the constitutional right of free speech in connection with a public issue 

or an issue of public interest.” (§ 425.16, subd. (e)(4).) It “extends to statements 

and writings of governmental entities and public officials on matters of public 

interest and concern that would fall within the scope of the statute if such 

statements were made by a private individual or entity.” (Vargas v. City of Salinas

(2009) 46 Cal.4th 1, 17.) The “public interest” component “is met when „the 

statement or activity precipitating the claim involved a topic of widespread public 

interest,‟ and „the statement . . in some manner itself contribute[s] to the public 

debate.‟” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, 
12

Inc. (2005) 129 Cal.App.4th 1228, 1246.) The question whether something is an 

issue of public interest “must be „“construed broadly.”‟” (Gilbert v. Sykes (2007) 

147 Cal.App.4th 13, 23.) As we now explain, Gallizzi‟s message constitutes 

protected speech as defined by this statutory provision.

The thrust of Gallizzi‟s message—given in his capacity as Superintendent 

and directed to and heard by teachers, school staff, parents and students—was an 

exposition of what he believed to be the mission of District‟s schools: to create a 

learning environment for all students. It cannot be denied that the purpose of 

public education and the role that teachers play in fulfilling that purpose are 

“issue[s] of public interest” (§ 425.16, subd. (e)(4)) vigorously debated throughout 

the community. It is appropriate to include in that debate a discussion about which 

actions and attitudes by teachers either further or inhibit the goal of creating a 

learning environment. Citing examples of inappropriate behavior is an accepted 

pedagogical technique to identify which conduct does and does not help reach a 

particular goal. Gallizzi‟s veiled reference to Jacobson was simply one of four 

examples he gave of what he believed was unprofessional conduct—three of which 

went unanswered by colleagues when voiced, a fact that also troubled Gallizzi—

that inhibited fulfilling District‟s mission.

Secondarily, Gallizzi used the message, given at the beginning of the school 

year, to explain the rationale for the new field trip policy. For several years, field 

trips had been a topic of public interest discussed throughout the community. Only 

three months earlier, four individuals (including Jacobson) had addressed the new 

proposed field trip policy at Board‟s public meeting. After the meeting, Gallizzi, 

pursuant to the direction of Board‟s President, convened a meeting of the 

Committee to make a final decision about field trips. The decision was made to 

pare them back and Gallizzi took the opportunity of presenting the “Welcome 

Back” message to address the newly adopted policy which was certainly an “issue 
13

of public interest” (§ 425.16, subd. (e)(4)) because it affected teachers, students, 

parents and administrators employed by District. 

We therefore conclude that the entirety of Gallizzi‟s “Welcome Back” 

message, including its references to what Gallizzi believed represented negative 

attitudes by teachers (including Jacobson), was constitutionally protected speech 

on issues of public interest: the purpose of public education, the role of public 

school teachers in furthering that purpose and District‟s field trip policy. (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”] and 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”]; see also Ghafur v. Bernstein (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.‟”].)

Jacobson‟s contrary argument is not persuasive. She simply argues that 

Gallizzi‟s statements “were not protected activity; there is no First Amendment 

right to make false statements so the anti-SLAPP motion to strike fails.” 

(Capitalization omitted.) This argument misapprehends the two-step process the 

trial court undertakes in ruling upon a special motion to strike. The trial court is 

not required to accept the plaintiff‟s claim that unprivileged defamatory statements 

were made and the defense is not required to show that no defamation occurred. 

Instead, the defense, in the first step of the process, need only “present a prima 

facie showing that the plaintiff‟s causes of action arise from acts of the defendant

taken to further the defendant‟s rights of free speech or petition in connection with 
14

a public issue. [Citation.] Only if the defendant makes this prima facie showing 

does the trial court consider the second step of the section 425.16, subdivision 

(b)(1) analysis; at that point, the burden shifts to the plaintiff to make a prima facie 

showing of facts which, if proven at trial, would support a judgment in the 

plaintiff‟s favor [for, e.g., defamation]. [Citation.]” (Paul for Council v. Hanyecz

(2001) 85 Cal.App.4th 1356, 1365.)

Further, none of the cases cited by Jacobson supports her argument that 

Gallizzi‟s statements did not constitute protected speech within the meaning of 

section 425.16, subdivision (e)(4). The vast majority of the cases involved fact 

patterns in which the appellate courts concluded that the gravamen of the 

plaintiff‟s case was not the defendant‟s constitutionally protected speech but, 

instead, was conduct not protected by the First Amendment. (Scott v. Metabolife 

Internat., Inc. (2004) 115 Cal.App.4th 404, 415-423 [personal injury action based 

upon the plaintiff‟s use of dietary supplements arises from the defendant‟s 

manufacture and sale of a defective product, not the manufacturer‟s exercise of 

free speech even though the plaintiff included a cause of action for false 

advertising]; Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 

Cal.App.4th 1308, 1317-1320 [action by local rent control board alleging that the 

landlords sought to evade rent control statues is not subject to a motion to strike 

because the landlords‟ actions were not taken in furtherance of their constitutional 

rights to petition or to exercise free speech]; Gallimore v. State Farm Fire & 

Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1397-1400 [lawsuit alleging that 

insurer had mishandled claims is not subject to a motion to strike because the 

defendant‟s activities did not arise from speech in connection with a public issue]; 

and Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1365 [campaign 

money laundering is “not a valid activity undertaken by defendants in furtherance 

of their constitutional right to free speech”].) In the other case cited by Jacobson, 
15

the appellate court concluded that a statutory exemption to a special motion to 

strike applied. (City of Long Beach v. California Citizens for Neighborhood 

Empowerment (2003) 111 Cal.App.4th 302 [legislative history of section 425.16, 

subdivision (d) establishes that an action to enforce local laws governing campaign 

contributions is not subject to a motion to strike].)

C. The Second Step in the Anti-SLAPP Motion: Jacobson Failed to Demonstrate 

 a Probability of Prevailing Upon Her Claims 

Because defendants established that Jacobson‟s action arose from 

constitutionally protected speech, we turn to whether Jacobson showed a 

probability of prevailing on her claims.9 In that regard, Jacobson was required to 

“„“„demonstrate that the complaint is both legally sufficient and supported by a 

sufficient prima facie showing of facts to sustain a favorable judgment if the 

evidence submitted by [her] is credited.‟”‟ [Citation.]” (Lin v. City of Pleasanton

(2009) 176 Cal.App.4th 408, 425.) We also consider the evidence offered by the 

defense to determine whether it defeats Jacobson‟s case as a matter of law. 

(Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398, and 

cases cited therein.) The trial court must “grant the motion if, as a matter of law, 

the defendant‟s evidence supporting the motion defeats the plaintiff‟s attempt to 

establish evidentiary support for the claim.” (Wilson v. Parker, Covert & 

Chidester (2002) 28 Cal.4th 811, 821.)

We find that Gallizzi‟s “Welcome Back” message was privileged, thereby 

establishing as a matter of law that Jacobson did not and cannot demonstrate a 

probability of prevailing upon the merits.

 

9

Even though the trial court did not reach the issue, “we can address [it] as it is 

subject to independent review. [Citation.]” (Roberts v. Los Angeles County Bar Assn., 

supra, 105 Cal.App.4th at pp. 615-616.)
16

Section 47 provides: “A privileged publication or broadcast is one made: 

[¶] (a) In the proper discharge of an official duty.” The statute “confers 

privileged status upon any statement made by a public official in the course of 

discharging his official duties.” (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 

500.) The privilege applies to local officials, including school superintendents,

who engage in the policy-making process and “protects any statement by a public 

official, so long as it is made (a) while exercising policy-making functions, and (b) 

within the scope of his official duties.” (Id. at p. 501; Morrow v. Los Angeles 

Unified School Dist., supra, 149 Cal.App.4th at pp. 1441-1442 [section 47 applies 

to school superintendent].) The privilege is absolute and precludes liability even if 

the defendant made defamatory statements with actual malice. (Saroyan v. Burkett

(1962) 57 Cal.2d 706, 708-710.)

Further, “the executive privilege broadly „encompass[es] all discretionary 

acts essential to the proper exercise of an executive function‟ decision.” (Morrow 

v. Los Angeles Unified School Dist., supra, 149 Cal.App.4th at p. 1442.) 

“„Because a public official‟s duty includes the duty to keep the public informed of 

his . . . management of the public business, . . . public statements by such officials 

are covered by the “official duty” duty privilege.‟” (Maranatha Corrections, LLC 

v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 

1089.) If the defense in a special motion to strike establishes that the statements 

underlying the plaintiff‟s action are privileged under section 47, the trial court is 

required to grant the motion. (Id. at pp. 1086-1091.)

As Superintendent, Gallizzi is “the chief executive officer of the governing 

board of the district.” (Ed. Code, § 35035, subd. (a).) In that capacity, he gave his 

“Welcome Back” message at the beginning of the 2010-2011 school year. The 

message was District‟s mission statement for the new school year. Not only was 

the message required viewing for all teachers but it was also disseminated to 
17

school staff, parents and students. In this public message, Gallizzi set forth his 

theme for the year and what he hoped to accomplish. In that context, he gave four 

examples of what he believed to be inappropriate or negative attitudes of teachers 

that could undermine the goal of creating a learning environment for all of the 

students. In the example that indirectly referenced Jacobson, Gallizzi also 

addressed the public controversy surrounding the change in the field trip policy 

and explained why the decision to limit the number of field trips had been made. 

This type of annual communication at the beginning of a school year explaining 

policy is part and parcel of effective administration of a public school district and 

is therefore covered by the absolute privilege found in section 47. (See, e.g., 

Kilgore v. Younger (1982) 30 Cal.3d 770, 782 [section 47 applies to the Attorney 

General‟s press conference during which he released a report that suggested the 

plaintiff was involved in criminal activity]; Saroyan v. Burkett, supra, 57 Cal.2d at 

pp. 710-711 [section 47 applies to the Superintendent of Banks‟ public statements 

critical of the plaintiff]; Maranatha Corrections, LLC v. Department of 

Corrections & Rehabilitation, supra, 158 Cal.App.4th at pp. 1087-1091 [section 47 

applies to the Director of Corrections‟ public release of a letter critical of a 

contractor and explaining the decision to terminate its contract]; Morrow v. Los 

Angeles Unified School Dist., supra, 149 Cal.App.4th at pp. 1440-1443 [section 47 

applies to the school superintendent‟s statements critical of a school principal]; and 

Royer v. Steinberg, supra, 90 Cal.App.3d at pp. 500-503 [section 47 applies to a 

school district‟s board of trustees‟ public statement explaining its reasons for 

demoting the superintendent].)
18

Jacobson‟s respondent‟s brief contains no argument about section 47 

although defendants‟ opening brief discussed the statutory provision at length.10 

Our conclusion that the absolute privilege applies makes it unnecessary to discuss 

any of Jacobson‟s arguments unrelated to the privilege, to consider whether 

Jacobson demonstrated a probability of prevailing based upon an analysis of the 

elements of each cause of action, or to reach any of defendants‟ alternative theories 

as to why the motion to strike should have been granted.

D. Attorney Fees

“[A] defendant who prevails on a section 425.16 motion is entitled to an 

award of attorney fees [citation], including attorney fees for the appeal [citation].” 

(Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1404; see also Morrow v. Los 

Angeles Unified School Dist., supra, 149 Cal.App.4th at p. 1446.) Accordingly, 

we reverse the trial court‟s order denying the special motion to strike and remand 

the cause to the trial court to determine, among other things, the amount of 

attorney fees to which defendants are entitled. 

 

10 Defendants raised this absolute privilege in the trial court in their special motion to 

strike. Jacobson offered no specific argument or authority against its application. 
19

DISPOSITION

The trial court‟s order denying defendants‟ motion to strike under 

section 425.16 is reversed. The matter is remanded with instructions to vacate the 

order, to enter a new order granting the motion, to dismiss Jacobson‟s complaint 

with prejudice, and to award attorney fees to defendants (including attorney fees on 

appeal) in an amount it will determine. Defendants are to recover their costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.