NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DEBBY DAY, et al., No. 22-55825
Plaintiffs-Appellees, D.C. No. 8:21-cv-01286-JLS-DFM v.
CALIFORNIA LUTHERAN UNIVERSITY; MEMORANDUM* et al.,
Defendants-Appellants.
Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding
Argued and Submitted July 14, 2023 Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and JACKSON,** District Judge.
In January 2020, a group of students from the California Lutheran
University (“CLU”) women’s softball team performed a lip-sync routine to the
theme song from The Fresh Prince of Bel-Air, allegedly wearing “hip-hop
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Brian A. Jackson, United States District Judge for the Middle District of Louisiana, sitting by designation. clothing,” dark makeup to portray facial hair, and curly wigs. After the team
posted the performance on social media, CLU’s leadership received a complaint
that the performance was “blackface.” In the following weeks, CLU’s leadership
addressed the performance in emails to the CLU students, campus-wide
community forums, and a meeting with the softball team and their parents. These
communications characterized the performance as a “racist incident,” remarked
that “blackface” “evoke[s] white supremacy” and “anti‑blackness,” and expressed
the view that “students were recorded doing performances in which there were
exaggerated characterizations of black people and culture” and that “[m]any
viewers in [the] campus community took offense and identified” the images as
“blackface.” Plaintiffs sued CLU and certain officers for defamation, false light,
and other state law claims arising from these assertedly false statements.
Defendants appeal the district court’s order denying their motion to dismiss
and special motion to strike plaintiffs’ defamation and false light claims and Coach
Debby Day’s unfair competition law (“UCL”) claim pursuant to California’s
Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute. We review
the district court’s order denying Defendants’ anti-SLAPP motion de novo.1
1 We deny plaintiffs’ motion for judicial notice, Dkt. No. 16, because they do not demonstrate any “extraordinary” circumstance to warrant supplementing the record on appeal. Kohn L. Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1241 (9th Cir. 2015).
2 Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). We reverse.
1. The district court correctly determined that “Defendants have
sufficiently made a prima facie showing that the activities at issue are protected
conduct” under the anti-SLAPP statute. See CoreCivic, Inc. v. Candide Grp., LLC,
46 F.4th 1136, 1140 (9th Cir. 2022). Protected conduct includes “conduct in
furtherance of the exercise of . . . the constitutional right of free speech in
connection with a public issue or an issue of public interest.” Cal. Civ. Proc. Code
§ 425.16(e)(4). Defendants’ statements were made in connection with an incident
that sparked campus-wide discussions about racism and racial justice, matters
involving significant public interest.2
2. The district court erred in concluding that plaintiffs stated a legally
sufficient claim for defamation under Federal Rule of Civil Procedure 12(b)(6).
Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828,
834 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir. 2018). A claim for
defamation is not actionable when it involves a privileged publication, Taus v.
Loftus, 40 Cal. 4th 683, 720 (2007), and defendants contend that the allegedly
defamatory statements are privileged under the common-interest privilege. See
Cal. Civ. Code § 47(c)(1) (a privileged publication is one made “[i]n a
2 Defendants’ statements are not prohibited under the Family Educational Rights and Privacy Act because they do not disclose any student’s personally identifiable information or records. See 20 U.S.C. § 1232g; 4 C.F.R. § 99.3.
3 communication, without malice, to a person interested therein, by one who is also
interested”). The privilege applies “where the communicator and the recipient
have a common interest and the communication is of a kind reasonably calculated
to protect or further that interest.” Cornell v. Berkeley Tennis Club, 18 Cal. App.
5th 908, 949 (2017) (internal quotation marks omitted) (quoting Hawran v. Hixson,
209 Cal. App. 4th 256, 287 (2012)).
The common-interest privilege applies here because the statements by
CLU’s leadership were made to the campus community, who share an interest in
addressing matters of racism and racial justice as it pertains to student groups and
campus activities. See, e.g., Taus, 40 Cal. 4th at 721 (holding that the
common-interest privilege applied to a psychology professor’s statement at a
conference attended by other mental health professionals). Plaintiffs’ assertion that
defendants “call[ed] attention” to the performance in various news outlets does not
defeat the privilege. California courts have recognized that the privilege can apply
even when challenged statements are later disseminated to the news media. See,
e.g., Brewer v. Second Baptist Church of Los Angeles, 32 Cal. 2d 791, 796–97
(1948); Institute of Athletic Motivation v. Univ. of Illinois, 114 Cal. App. 3d 1,
12–14 (1980). Plaintiffs’ reliance on Hawran v. Hixson is unavailing because the
allegedly defamatory press release was disseminated “to the world at large,” far
beyond the scope of a potentially interested “investing public.” 209 Cal. App. 4th
4 256, 287 (2012). Here, in contrast, CLU’s statements were directed not to the
world at large but “mainly towards those involved” with the same “narrow private
interests,” the campus community. Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 738
(1989). In any event, unlike Hawran, plaintiffs here do not allege that any
statement made to a news outlet was itself defamatory.
3. Plaintiffs have not plausibly alleged actual malice by any defendant
sufficient to defeat the common-interest privilege, i.e., that the defendants were
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DEBBY DAY, et al., No. 22-55825
Plaintiffs-Appellees, D.C. No. 8:21-cv-01286-JLS-DFM v.
CALIFORNIA LUTHERAN UNIVERSITY; MEMORANDUM* et al.,
Defendants-Appellants.
Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding
Argued and Submitted July 14, 2023 Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and JACKSON,** District Judge.
In January 2020, a group of students from the California Lutheran
University (“CLU”) women’s softball team performed a lip-sync routine to the
theme song from The Fresh Prince of Bel-Air, allegedly wearing “hip-hop
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Brian A. Jackson, United States District Judge for the Middle District of Louisiana, sitting by designation. clothing,” dark makeup to portray facial hair, and curly wigs. After the team
posted the performance on social media, CLU’s leadership received a complaint
that the performance was “blackface.” In the following weeks, CLU’s leadership
addressed the performance in emails to the CLU students, campus-wide
community forums, and a meeting with the softball team and their parents. These
communications characterized the performance as a “racist incident,” remarked
that “blackface” “evoke[s] white supremacy” and “anti‑blackness,” and expressed
the view that “students were recorded doing performances in which there were
exaggerated characterizations of black people and culture” and that “[m]any
viewers in [the] campus community took offense and identified” the images as
“blackface.” Plaintiffs sued CLU and certain officers for defamation, false light,
and other state law claims arising from these assertedly false statements.
Defendants appeal the district court’s order denying their motion to dismiss
and special motion to strike plaintiffs’ defamation and false light claims and Coach
Debby Day’s unfair competition law (“UCL”) claim pursuant to California’s
Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute. We review
the district court’s order denying Defendants’ anti-SLAPP motion de novo.1
1 We deny plaintiffs’ motion for judicial notice, Dkt. No. 16, because they do not demonstrate any “extraordinary” circumstance to warrant supplementing the record on appeal. Kohn L. Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1241 (9th Cir. 2015).
2 Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). We reverse.
1. The district court correctly determined that “Defendants have
sufficiently made a prima facie showing that the activities at issue are protected
conduct” under the anti-SLAPP statute. See CoreCivic, Inc. v. Candide Grp., LLC,
46 F.4th 1136, 1140 (9th Cir. 2022). Protected conduct includes “conduct in
furtherance of the exercise of . . . the constitutional right of free speech in
connection with a public issue or an issue of public interest.” Cal. Civ. Proc. Code
§ 425.16(e)(4). Defendants’ statements were made in connection with an incident
that sparked campus-wide discussions about racism and racial justice, matters
involving significant public interest.2
2. The district court erred in concluding that plaintiffs stated a legally
sufficient claim for defamation under Federal Rule of Civil Procedure 12(b)(6).
Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828,
834 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir. 2018). A claim for
defamation is not actionable when it involves a privileged publication, Taus v.
Loftus, 40 Cal. 4th 683, 720 (2007), and defendants contend that the allegedly
defamatory statements are privileged under the common-interest privilege. See
Cal. Civ. Code § 47(c)(1) (a privileged publication is one made “[i]n a
2 Defendants’ statements are not prohibited under the Family Educational Rights and Privacy Act because they do not disclose any student’s personally identifiable information or records. See 20 U.S.C. § 1232g; 4 C.F.R. § 99.3.
3 communication, without malice, to a person interested therein, by one who is also
interested”). The privilege applies “where the communicator and the recipient
have a common interest and the communication is of a kind reasonably calculated
to protect or further that interest.” Cornell v. Berkeley Tennis Club, 18 Cal. App.
5th 908, 949 (2017) (internal quotation marks omitted) (quoting Hawran v. Hixson,
209 Cal. App. 4th 256, 287 (2012)).
The common-interest privilege applies here because the statements by
CLU’s leadership were made to the campus community, who share an interest in
addressing matters of racism and racial justice as it pertains to student groups and
campus activities. See, e.g., Taus, 40 Cal. 4th at 721 (holding that the
common-interest privilege applied to a psychology professor’s statement at a
conference attended by other mental health professionals). Plaintiffs’ assertion that
defendants “call[ed] attention” to the performance in various news outlets does not
defeat the privilege. California courts have recognized that the privilege can apply
even when challenged statements are later disseminated to the news media. See,
e.g., Brewer v. Second Baptist Church of Los Angeles, 32 Cal. 2d 791, 796–97
(1948); Institute of Athletic Motivation v. Univ. of Illinois, 114 Cal. App. 3d 1,
12–14 (1980). Plaintiffs’ reliance on Hawran v. Hixson is unavailing because the
allegedly defamatory press release was disseminated “to the world at large,” far
beyond the scope of a potentially interested “investing public.” 209 Cal. App. 4th
4 256, 287 (2012). Here, in contrast, CLU’s statements were directed not to the
world at large but “mainly towards those involved” with the same “narrow private
interests,” the campus community. Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 738
(1989). In any event, unlike Hawran, plaintiffs here do not allege that any
statement made to a news outlet was itself defamatory.
3. Plaintiffs have not plausibly alleged actual malice by any defendant
sufficient to defeat the common-interest privilege, i.e., that the defendants were
“motivated by hatred or ill will” towards the plaintiffs or “lacked reasonable
ground for belief in the truth of the publication.” Taus, 40 Cal. 4th at 721. The
district court concluded in error that some of the statements “were offered in bad
faith and with some awareness that they were not truthful” because then-CLU
President Chris Kimball allegedly acknowledged in a meeting with the softball
team that he believed the students “did not intend to do anything racist,” even as he
later characterized the performance as “blackface.” This acknowledgement does
not establish that Kimball lacked reasonable grounds to believe in the truth of his
emailed statements. Kimball also stated in that meeting that “there is a distinction
between intent and impact” and others perceived the performance to be hurtful.
Kimball added that in his view, the performance was “blackface” given how the
group was dressed and differing definitions of the term. These statements to the
team are consistent with Kimball’s campus-wide email defending the use of the
5 term “blackface” to describe performances that involve “exaggerated
characterizations of black people and culture.” In short, plaintiffs have not
plausibly alleged any bad faith or knowledge of the falsity of the challenged
statements.
For the same reasons, plaintiffs fail to sufficiently plead their false light
claims, which are based on the same allegations as their defamation claims.
Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1264 (2017), as modified (Apr. 19,
2017).
4. A claim brought under the UCL “requires that a plaintiff have ‘lost
money or property’ to have standing to sue.” Kwikset Corp. v. Superior Ct., 51
Cal. 4th 310, 323 (2011) (quoting Peterson v. Cellco Partnership, 164 Cal. App.
4th 1583, 1590 (2008)). Coach Day has not alleged any concrete economic injury
arising from defendants’ allegedly unfair practices. Her allegation that she “lost
money” in the form of “compensation” is conclusory, and without more,
insufficient to establish standing to pursue her UCL claim.
REVERSED and REMANDED.