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Filed 8/28/15 White v. Edley CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

WILDA WHITE,

Plaintiff and Appellant,

v.

CHRISTOPHER EDLEY et al.,

Defendant and Respondent.

 A141212

 (Alameda County

 Super. Ct. No. RG13688585)

Wilda White brought this action for defamation, deceit and breach of contract 

against former University of California Berkeley School of Law1 Dean Christopher 

Edley, Jr., two law school employees, and the University of California Regents. Edley 

and Boalt Administrative Assistant Ayn Lowry moved to strike the complaint’s causes of 

action for libel per se under California’s anti-SLAPP (strategic lawsuit against public 

participation) statute, Code of Civil Procedure section 425.16.2 All parties concede that 

White’s allegations arose from protected activity within the meaning of the anti-SLAPP 

statute. The trial court granted the motion on the grounds that the allegedly defamatory 

statements were nonactionable and that they fell within the official duty privilege of Civil 

Code section 47, subdivision (a). We affirm.

 

1 Although in 2007 the law school changed its official name to UC Berkeley 

School of Law, we follow the complaint’s practice of referring to it by the informal name 

Boalt Hall, or Boalt. (See Lattman, P., The Renaming of Boalt Hall, WSJ Law Blog, Oct. 

15, 2007.)

2 Hereinafter section 425.16.
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BACKGROUND

Between December 2008 and June 2013, White was the executive director of the 

Thelton E. Henderson Center for Social Justice (the Henderson Center), a department at 

Boalt Hall. In April 2013 the law school decided not to renew White’s appointment for 

the ensuing academic year. The decision was based, in part, on a public outburst by 

White at a gala welcoming prospective African-American students to Boalt. White spoke 

at the event and, rather than welcome the attendees, aired her personal disagreements 

with the University, told them the event was “a fraud,” and warned them that attending 

Boalt would expose them to sexual harassment and racial hostility from faculty and 

students. White encouraged the prospective students to instead attend the “Justice 

School,” a new law school she was originating. 

Upon being informed her appointment would not be renewed, White sued Boalt 

faculty member and executive director of the Henderson Center Mary Louise Frampton 

for intentional infliction of emotional distress and deceit. The Frampton lawsuit alleged 

there was racial hostility at the law school in general and included specific allegations 

against Frampton, Dean Edley, and other Boalt faculty and staff. White accused 

Frampton of falsifying her June 2011 performance evaluation “by falsely and maliciously 

attributing to faculty members odious statements” about her, conspiring to falsify 

employee time sheets, fraudulently inducing White to work without pay during the 

summers of 2011 and 2012, and terminating her for reporting Frampton’s alleged 

misconduct. 

White discussed these allegations widely among students, faculty and peers. On 

June 14, 2013, she sent an email to the Boalt Hall community captioned “Berkeley Law 

Fires Henderson Center Executive Director Wilda White for Whistle blowing on Mary 

Louise Frampton—Race a Factor, Lawsuit Says.” Her e-mail described her accusations

of racism and fraud at Boalt and implicated the law school, Dean Edley and other law 

school officials in addition to Professor Frampton. White posted information about the 

Frampton complaint on her personal website, again referring specifically to the 

University of California, Dean Edley, and other faculty and staff. She also publicized her 
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allegations on her public blog and Twitter feed, and was quoted about her claims in The 

Daily Californian. 

Not surprisingly, Dean Edley and others at Boalt received inquiries about White’s 

claims from faculty, students and the media. Lowry heard students and faculty members 

discussing White’s email and the lawsuit. For example, she observed students and 

faculty discussing the matter in the campus café, and on one occasion a student 

commented to her that it seemed like “ ‘half the Berkeley Law faculty was implicated.’ ” 

It was clear to Lowry that there was widespread interest in White’s allegations. 

Dean Edley eventually felt compelled to respond to White’s public accusations 

and commentaries. On July 2, 2013, he drafted and sent a letter about White’s litigation 

to “Members of the Berkeley Law Community.” Edley chose recipients he believed 

would be interested given their connection to the law school. The letter, in full, stated:

“As many of you are now aware, we are regretfully involved in a contentious 

public dispute with Wilda White, the former executive director of Berkeley Law’s 

Thelton Henderson Center for Social Justice. Because this is both a personnel matter and 

a subject of litigation, there are constraints on what I can say at this time, but I can and 

must broadly respond to what are utterly false allegations.

“First and foremost, I have complete faith in the current leadership and staff of the 

Henderson Center, particularly our faculty director, Professor Mary Louise Frampton. 

Their professional skills and values have been essential ingredients in the Center’s 

success, the extent to which it has helped to advance the cause of social justice in 

neighboring communities and in this country, and the contributions the Center makes to 

Berkeley Law.

“Despite what you may have heard or read, Ms. White was not fired. For solely 

professional reasons, we made a decision not to extend or renew her employment 

contract, which ended on June 30th. We have already begun the process of searching for 

a new executive director, and I am confident that the Henderson Center’s reputation and
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the support it enjoys on- and off-campus will ensure a highly talented and diverse set of 

applicants.

“In so far as Ms. White’s litigation and public statements are concerned, I want to 

refute in the strongest possible terms her allegations of racial bias, conspiracy and 

falsification of performance reviews. These claims are contradicted by the facts, as well 

as the first-hand experience so many of us have had working with Ms. White and with the 

individuals she has so unfairly targeted. Ms. White’s [sic] has also made utterly baseless 

claims that students from under-represented minority groups are somehow unwelcome at 

Berkeley Law. Her claims are outrageous and offensive. Nothing could be further from 

the truth, as our faculty, staff, students and alumni can readily confirm.

“As with all such litigation, the matter is now the responsibility of the UC 

system’s Office of General Counsel, which will handle the legal process going forward. 

We hope this will be resolved quickly, but of course we cannot control that. I will 

provide appropriate updates to you when I am able. Meanwhile, I deeply appreciate the 

expressions of support we have received from our community and distinguished members 

of the Henderson Center’s advisory counsel.” 

In her role as administrative assistant, Lowry was asked to send Dean Edley’s 

letter to the individuals on the Henderson Center’s e-mail list “given that [White’s] 

allegations implicated the Henderson Center and its faculty.” The Henderson Center 

used “Constant Contact” software to inform its constituency, so Lowry used it to 

disseminate Dean Edley’s letter by selecting as recipients groups and individuals who 

were personally connected to the Center. Lowry, whom the complaint accused of 

cooperating in Frampton’s alleged fabrications and fraudulent conduct, disputed those 

allegations and believed that Edley’s response was appropriate, warranted and truthful. 

However, she was not involved in drafting the Dean’s letter and provided no input into it. 

White sued Edley and Lowry for “defamation-libel per se,”

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alleging the Dean’s 

letter falsely accused her of being untruthful when it described allegations in the 

 

3 Other causes of action against the U.C. Regents and Frampton are not at issue in 

this appeal. 
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Frampton complaint as “utterly false,” “utterly baseless,” and “outrageous and 

offensive.” White identified as provably false statements Edley’s comments “(1) that 

defendant Frampton did not falsify plaintiff Wilda L. White’s July 2011 performance 

evaluation; (2) that defendant Frampton did not attempt to conspire with plaintiff Wilda 

L. White and her colleagues to cause the submission of fraudulent time sheets; and (3) 

that there is not a significant number of non-white students who sense a climate of racial 

hostility at Boalt Hall.” She alleged Lowry disseminated the Edley letter “of her own 

volition and with her own personal motives for doing so,” while knowing that at least 

some of Dean Edley’s statements were false and that he was falsely accusing White of 

being untruthful. 

Edley and Lowry moved to strike the complaint under section 425.16 on the 

grounds that the allegations against them arose from protected speech and there was no 

reasonable probability that White would prevail. The trial court agreed. It found, as 

White conceded, that the action arose from an act in furtherance of free speech and was 

therefore subject to the anti-SLAPP statute. Turning to whether White had demonstrated 

a probability of prevailing on her claims, the court ruled that Dean Edley’s statements 

were both nondefamatory and privileged under Civil Code section 47, subdivision (a) as 

made in the discharge of an official duty. Accordingly, it dismissed the action as to 

Lowry and Edley. White filed this timely appeal. 

DISCUSSION 

I. The Anti-SLAPP Statute

Unmeritorious claims that are brought to thwart constitutionally protected speech 

or petitioning activity may be stricken pursuant to a motion filed under section 425.16. 

(See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 102.) This antiSLAPP statute provides: “(b)(1) 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 
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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. 

[¶] . . . [¶] (e) As used in this section, ‘act in furtherance of a person’s right of petition or 

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

connection with a public issue’ includes: (1) any written or oral statement or writing 

made before a legislative, executive, or judicial proceeding, or any other official 

proceeding authorized by law, (2) any written or oral statement or writing made in 

connection with an issue under consideration or review by a legislative, executive, or 

judicial body, or any other official proceeding authorized by law, (3) any written or oral 

statement or writing made in a place open to the public or a public forum in connection 

with an issue of public interest, or (4) any other conduct in furtherance of the exercise of 

the constitutional right of petition or the constitutional right of free speech in connection 

with a public issue or an issue of public interest.” (§ 425.16.) 

We consider an anti-SLAPP motion 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. The moving defendant’s burden is to 

demonstrate that the act or acts of which the plaintiff complains were taken ‘in 

furtherance of the [defendant]’s right of petition or free speech under the United States or 

California Constitution in connection with a public issue,’ as defined in the statute. 

(§ 425.16, subd. (b)(1).) 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. Under section 425.16, subdivision (b)(2), the trial court in making these 

determinations considers ‘the pleadings, and supporting and opposing affidavits stating 

the facts upon which the liability or defense is based.’ ” (Equilon Enterprises v. 

Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) 

We independently review the trial court’s determinations as to whether the 

plaintiff has shown a probability of prevailing. (ComputerXpress, Inc. v. Jackson (2001) 
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93 Cal.App.4th 993, 999.) An anti-SLAPP motion does not survive this prong “ ‘if the 

plaintiff presents evidence establishing a prima facie case which, if believed by the trier 

of fact, will result in a judgment for the plaintiff. [Citation.]’ ” (Fleishman v. Superior 

Court (2002) 102 Cal.App.4th 350, 356.) 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.]’ ” (Nygard, Inc. 

v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1036 (Nygard).) “In order to satisfy due 

process, the burden placed on the plaintiff must be compatible with the early stage at 

which the motion is brought and heard [citation] and the limited opportunity to conduct 

discovery.” (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on 

other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.) 

II. Analysis

Although it is highly questionable whether Dean Edley’s statements could be 

considered defamatory, White correctly concedes they were made in connection with 

litigation and therefore fall within the scope of section 425.16, subdivision (e)(2). The 

issue before us, then, is whether White satisfied her burden of demonstrating a 

probability of prevailing on her allegations against Edley and Lowry. She did not, 

because her defamation claims arising from the Edley letter are precluded by the official 

duty privilege under Civil Code 47, subdivision (a)4.

In relevant part, section 47 states: “A privileged publication or broadcast is one 

made: . . . In the proper discharge of an official duty.” White contends Edley’s position 

as dean of a public law school does not qualify him to invoke this privilege because “his 

job is essentially operational,” his duties “reveal no governmental policymaking role,” 

and he is not entrusted with any vital public functions. Alternatively, she argues that 

even if the privilege generally may apply to a law school dean, Edley cannot invoke it 

 

4 Hereinafter section 47, subdivision (a).
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here because he was not exercising a policy-making function when he circulated the 

allegedly defamatory letter. Her contentions are not persuasive.

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

(Morrow) shows why. The court there applied the official duty privilege to immunize a 

school superintendent, immunizing him from liability for an allegedly defamatory 

announcement of the transfer of a high school principal. Like White in this case, the 

principal argued the privilege did not apply to the superintendent because he was not 

exercising a policymaking function when he issued the challenged statements. (Id. at p. 

1442–1443.) The court disagreed. First, it concluded the privilege extends to comments 

by “lower ranking officials” such as the school superintendent. (Id. at p. 1441, citing 

Barr v. Matteo (1959) 360 U.S. 564 [absolute privilege applied to the acting director of 

the Office of Rent Stabilization]; Copp v. Paxton (1996) 45 Cal.App.4th 829, 840 (Copp) 

[to a county emergency services coordinator]; Royer v. Steinberg (1979) 90 Cal.App.3d 

490, 500-501 (Royer) [to school board trustees]; see also Neary v. Regents of University 

of California (1986) 185 Cal.App.3d 1136, 1142 (Neary) [a University of California Vice 

Chancellor, as an agent of the regents, “may indeed fall into the category of a state 

official who engages in policymaking”].) “As the Supreme Court explained in Barr: ‘It 

is not the title of his office but the duties with which the particular officer . . . is entrusted 

. . . which must provide the guide in delineating the scope of the rule which clothes the 

official acts of the executive officer with immunity from civil defamation suits.’ ” 

(Morrow at pp. 1441–1442.) 

In view of these authorities, the evidence here satisfies us that Edley’s substantial 

and wide-ranging duties as dean of a public law school qualify him for the privilege. 

Dean Edley is “the administrative head and academic leader of Berkeley Law.” As the 

trial court observed, “Plaintiff’s own evidence—the University’s Academic Personnel 

Manual 240—broadly defines the Dean’s duties as follows: ‘An academic Dean is head 

of a Division, College, School, or other similar academic unit and has administrative 

responsibility for that unit. This assignment includes fiscal responsibility for the unit;

responsibility for ensuring diversity of the faculty, students and staff, including 
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maintaining an affirmative action recruitment and retention program consistent with 

University affirmative action policies, Regental policy and applicable law; and 

responsibility for ensuring that system-wide and local policies, including Academic 

Senate regulations, are observed.’ ” 

The trial court also noted academic commentary on the nature of a law school 

deanship: “The law school dean’s duties involve accountability to a number of different 

constituencies, one or more of which may hold different perspectives on the dean’s role 

in leading a law school. A dean must respond to the concerns of faculty members, law 

students, the law school’s support staff, the law school’s graduates, university 

administrators, donors and supporters, the bench and bar, and other friends of the law 

school. [¶] A law school dean serves as the law school’s chief executive officer and chief 

academic officer. The position has been declared analogous to that of a president of a 

small college.” (J. Griffith, The Dean’s Role As A Member of the University’s Central 

Administration (2003) 35 U.Tol.L.Rev. 79, 81-82.) We are satisfied that the dean of a 

preeminent public law school, no less than the school superintendent in Morrow, school 

board trustees in Royer, or county emergency services coordinator in Copp, holds a 

position of sufficient responsibility to qualify for the privilege afforded under Civil Code 

47, subdivision (a).

We are also satisfied that Dean Edley wrote and disseminated his letter in the 

“proper discharge of an official duty” as required for invocation of the privilege. White 

argues the privilege applies only if “a public official [was] exercising policy-making

functions when he or she made the alleged defamatory statements,” while in her view 

Dean Edley’s letter was merely about “the functioning of the Berkeley Law [sic], which 

falls within the category of routine, ministerial duties incident to the normal operations of 

running a law school.” Not so. In Copp, supra, 45 Cal.App.4th at pp. 843–844, Division 

One of this court clarified the significance of this “policy-making” language, which

appears in a number of cases. “The Royer decision states that the privilege applies only 

to communications made ‘while exercising policy-making functions.’ [Citation.] Similar 
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language is found in Sanborn v. Chronicle Pub. Co., [citation], Kilgore v. Younger, 

[citation], and Neary v. Regents of University of California, [citation]. The Saroyan 

decision, however, speaks more broadly of acts ‘in the exercise of an executive 

function . . .’ (Saroyan v. Burkett, supra, 57 Cal.2d at p. 710.) This formulation better 

reflects the standard in Barr v. Matteo, supra, 360 U.S. 564 which asks whether the 

communication ‘was an appropriate exercise of the discretion which an officer of that 

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

necessarily inconsistent with language referring to the ‘exercise of policy-making 

functions’ but calls for a broad interpretation of this language to encompass all 

discretionary acts essential to the proper exercise of an executive function. We regard the 

language of the Saroyan decision as best defining the parameters of the privilege.” 

(Copp at pp. 843–844.) We agree.

 Under this standard, the school superintendent’s statements to the press in 

Morrow were privileged because “as superintendent he was publicly explaining the 

district’s response to a matter of widespread concern, which was one of his official 

duties.” (Morrow, supra, 149 Cal.App.4th at pp. 1442–1443.) So too here. No less than 

in Morrow, Dean Edley’s public response to White’s much-publicized allegations of 

fraud, conspiracy and racism against law school faculty and staff “ ‘was an appropriate 

exercise of the discretion which an officer of that rank must possess if the public service 

is to function effectively.” (Id. at p. 1442, quoting Barr, supra, 360 U.S. at pp. 574–575.) 

“Because a public official’s duty includes the duty to keep the public informed of his or 

her management of the public business, press releases, press conferences and other public 

statements by such officials are covered by the ‘official duty’ privilege. . . .” (Rothman v. 

Jackson (1996) 49 Cal.App.4th 1134, 1149, fn. 6.)

White attempts to distinguish Morrow, Barr and other seminal “official duty” 

cases on the ground that there the officials’ duties were prescribed by statute, but none of 

those cases identify or state that the statutory nature of any official duty was the basis for 

extending the official duty privilege. White tries to distinguish Copp on the purported 

grounds that that law schools do not serve a “vital public function” and Edley was neither 
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appointed by nor reports to an elected official, but nothing in Copp or any of the other 

pertinent cases suggests these are meaningful distinctions. She also argues that Neary, 

supra, 185 Cal.App.3d 1136 teaches that only a University of California employee who is 

an agent of the University of California Regents may qualify for the official duty 

privilege. Neary holds no such thing, but no matter. There is no dispute that at all 

relevant times Edley was employed by the University of California and acted within the 

scope of his employment. “An employee is an agent” of his employer. (Foley v. 

Interactive Data Corp. (1988) 47 Cal.3d 654, 669.)

White further contends that even if Edley is protected by the official duty 

privilege, Lowry, who disseminated his letter in her role as administrative assistant, is 

not. Here too, we disagree. The evidence establishes that all Lowry did was comply with 

a workplace request to distribute Dean Edley’s letter to individuals on the Henderson 

Center’s email list. As the trial court observed, the privilege attaches to the letter: “A 

privileged publication or broadcast is one made: (a) In the proper discharge of an official 

duty.” (Civ. Code, § 47, subd.(a), italics added.) Given our conclusion that Dean Edley’s

letter is privileged under section 47, subdivision (a), we agree with the court’s conclusion 

that Lowry’s ministerial act of disseminating it as directed cannot expose her to liability 

for its contents. To hold otherwise would, practically speaking, eviscerate the privilege 

by exposing to liability any clerical employee (and presumably, under principles of 

respondeat superior, the employer) whose job it is to type addresses on envelopes or take 

mail to the mailroom. That cannot be the law. 

Neary, supra, is not to the contrary. The court there held that the official duty 

privilege might shield a vice chancellor from liability for his decision to release an 

allegedly defamatory report, but did not extend to the veterinarians who researched and 

wrote the report. (185 Cal.App.3d at p. 1147–1148.) Lowry did not author the allegedly 

defamatory letter and its author is, as we have explained, shielded by the privilege, so 

Neary has no bearing. The court correctly dismissed White’s defamation causes of action 

as against both defendants.
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DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Jenkins, J.