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Keith A. Fink, Bar No. 146841

OlafJ. Muller, Bar No. 247372
FINK & STEINBERG
Attorneys at Law
11500 Olympic Boulevard, Suite 316
Los Angeles, California 90064
Telephone: (310) 268-0780
Facsimile: (310) 268-0790

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Attorneys for Defendant

JAMES CLARK

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF VENTURA

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ROBERT BLOOM,

CASE NO. 56-2014-00459886-CU-DF-VTA

II

DEFENDANTJAMES CLARKS NOTICE

OF SPECIAL MOTION AN]) SPECIAL
MOTION TO STRIKE PLAINTIFFS
COMPLAINT PURSUANT TO C.C.P.
425.16; MEMORANDUM OF POINTS AND
AUTHORITIES

Plaintiff,
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v.
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JAMES CLARK and DOES 1-5, inclusive,

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Defendants.

[Defendants Evidence in support of Special

Motion to Strike submitted concurrently
herewith]

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1.7

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Hearing Date:
Hearing Time:
Hearing Dept:
Reservation No.:

February 10, 2015

8:30 a.m.
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2022464

Trial Date:
Trial Time:
Trial Dept:

None Set
None Set
None Set

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
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PLEASE TAKE NOTICE THAT on February 10, 2015, at 8:30 a.m. in Department 20 of the
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Ventura County Superior Court located at 800 S. Victoria Street, Ventura, CA 93009, DEFENDANT
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JAMES CLARK (Clark and/or Defendant) will and hereby does move to strike PLAINTIFF
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ROBERT BLOOMS (Bloom and/or Plaintiff) Complaint pursuant to C.C.P.

425.16.

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This Special Motion to Strike is based upon this Notice of Motion, on the Memorandum of Points

1
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

425J6

and Authorities attached hereto, on the accompanying Evidence in support thereof; on the pleadings and

records on file herein, and on such further oral or documentary evidence or argument as may be presented

at the hearing.

PLEASE TAKE FURTHER NOTICE that should the Court grant Defendant Clarks underlying

Special Motion to Strike, Defendant Clark further reserves the right to file a separate Motion against

Plaintiff Bloom for the recovery of attorneys fees an

:
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DATED: January 9, 2015

FIN

sts ursuant to C.C.P.

425.16(c).

& STEI BERG

By
Keith A. Fink
OlafJ. Muller
Attorneys for Defendant
JAMES CLARK

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DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO CC.P.

425.16

TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

2.

STATEMENT OF PERTINENT FACTS

3.

LEGAL ARGUMENT

3.1

LEGAL STANDARD FOR SPECIAL MOTION TO STRIKE

3.2

FIRST PRONG THE ANTI-SLAPP STATUTE INDISPUTABLY

APPLIES TO PLAINTIFFS CLAIMS AGAINST DEFENDANT
CLARK HERE

SECOND PRONG THIS COURT SHOULD GRANT

DEFENDANT CLARKS SPECIAL MOTION TO STRIKE
BECAUSE PLAINTIFF INDISPUTABLY HAS SUED CLARK
FOR PRIVILEGED, CONSTITUTIONALLY-PROTECTED,
NON-ACTIONABLE CONDUCT

3.3

3.3.1

3.4

Plaintiff Impermissibly Targets Defendant Clarks

Privileged and Non-Actionable Complaints Regarding
PlaintifPsJob Performance as a Public Employee under
Civil Code 47(b)

3.3.2 Plaintiff Impermissibly Targets Defendant Clarks

Privileged and Non-Actionable Threats ofLitigation
and Demands Relating to the Same

10

SECOND PRONG ALTERNATELY, THIS COURT SHOULD

GRANT DEFENDANTS SPECIAL MOTION BECAUSE
PLAINTIFF INDISPUTABLY CANNOT ESTABLISH
THAT DEFENDANT MADE ANY OF THE
ALLEGEDLY DEFAMATORY STATEMENTS WITH
ACTUAL MALICE

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3.4.1

Plaintiff Must Show Actual Malice by Defendant

Clark Because Plaintiff Is a General and/or Limited
Purpose Public Figure By Virtue of His Status as Head
Coach of the Westlake High Schools Mens Basketball Team

11

3.4.2

Plaintiff Must Show Actual Malice by Defendant Because

Plaintiff Is a General or Limited Purpose Public Figure
as a Public Official

1.2

Plaintiff Bloom Must Show Actual Malice by

Defendant Clark Because Clarks Statements Are
Qualifiedly Privileged Under Civil Code 47(c)

13

3.4.4

Legal Standard for Actual Malice

15

3.4.5

PlaintiffBloom Cannot Possibly Show Clear and

Convincing Evidence of Actual Malice by Defendant Clark
Because Clark Had More Than Sufficient Factual Grounds
for His Allegedly Defamatory Communications

15

3.4.3

3.5

5.

THIS COURT SHOULD GRANT DEFENDANT CLARKS

SPECIAL MOTION TO STRIKE BECAUSE PLAINTIFF
BLOOM CANNOT ESTABLISH THAT CLARKS
ALLEGEDLY DEFAMATORY STATEMENTS ARE FALSE

CONCLUSION

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17

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TABLE OF AUTHORITIES
CALIFORNIA STATUTES AND REGULATIONS

Civil Code

47

7-9, 11, 13-14

Code of Civil Procedure 340

Code of Civil Procedure 425.16

3, 5-7, 9-11, 15, 17

CALIFORNIA SUPREME COURT CASES

Briggs v. Eden Council for Hope and Opportunity (1999) 19 CaI.4th 1106

5, 7, 10

Hagberg v. California Federal Bank (2004) 32 Cal.4th 350

Khawar v. Globe International, Inc. (1998) 19 Cal.4th 254

15

McCoy v. Hearst Corp. (1986) 42 Cal.3d 835

15

Silberg v. Anderson (1990) 50 Cal.3d 205

Taus v. Loftus (2007) 40 Cal. 4th 683

Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180

CALIFORNIA APPELLATE COURT CASES

Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232

10

A.F. Brown Electrical Contractor v. Rhino Electrical Supply (2006) 137 Cal.App.4th 1118

Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386

Bradbury v. Superior Court (1996) 49 Cal.App.4th 1170

Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818

111

Brody v. Montalbano (1978) 87 Cal.App.3d 725.7-8

Campanelliv. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572

17

Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71

15

Ghafur v. Bernstein (2005) 131 Cal.App.4th 1230

Harris v. Curtis Publishing Co. (1942) 49 Cal. App. 2d 340

8-12
6

Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450... 6-7, 14
Kahn v. Bower (1991) 232 Cal.App.3d 1599

13

Kashian v. Harriman (2002) 98 Cal.App.4th 892

8, 10

Lee v. Fick (2005) 135 Cal.App.4th 89

7-10

Maim v. Singer (2013) 217 Cai.App.4th 1283

10

Maranatha Corrections, LLC v. Department of Corrections and Rehabilitation (2008) 158

Cal.App.4th 1075
Martin v Kearney (1975) 51 Cal.App.3d 309

5
8, 14

M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623

Rohde v. Wolf (2007) 154 Cal.App.4th 28

6
10

Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456

Shekhter v. Financial Indemnity Co. (2001) 89 Cai.App.4th 141

7
10

Syimar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049

Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534

Walker v. Kiousis (2001) 93 Cal.App.4th 1432

Weinberg v. Feisel (2003) 110 Cal.App.4th 1122

-iv-

UNITED STATES SUPREME COURT CASES

Baumgartner v. United States (1944) 322 U.S. 665

Curtis Publishing Co. v. Butts (1967) 388 U.S. 130

11-12

Garrison v. Louisiana (1964) 379 U.S. 64

15

Gertz v. Robert Welch (1974) 418 U.S. 323

11

Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657

15

Lorain journal Co. Et Al. v. Milkovich (1985) 474 U.S. 953

New York Times Co. v. Sullivan 376 U.S. 254

11-12

Rosenblatt v. Baer (1966) 383 U.S. 75

3, 13

FEDERAL CIRCUIT COURT CASES

Chuy v. Philadelphia Eagles Football Club 595 F.2d 1265 (3d Cir. 1979)
Garcia v. Bd. Of Ed. Of Socorro Consol. Sch. Dist. (10th Cir. 1985) 777 F2d 1403

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3

FEDERAL DISTRICT COURT CASES

Barry v. Time, Inc. (N.D. Cal. 1984) 584 F.Supp. 1110

11-12

1
2

MEMORANDUM OF POINTS AND AUTHORITIES

1.

INTRODUCTION
One of the prerogatives of American citizenship is the right to criticize public men and

measures

foolishly and without moderation. Baumgartner v. United States (i944) 322 U.S. 665, 673-674.

--

and that means not only informed and responsible criticism but the freedom to speak

Public schools are the Nations most important institution in the preparation of individuals

for participation as citizens, and in the preservation of the values on which our society rests. Lorain

Journal Co. EtA1. v. Milkovich (1985) 474 U.S. 953, 958 (dis. opn. of Brennan, J.).

[T]he governance of a public school system is of the utmost importance to a community, and

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school board policies are often carefully scrutinized by residents.... [There is a] strong public interest in

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ensuring open discussion of [public school officials] job performance.... Rosenblatt v. Baer (1966) 383

12

U.S. 75, 85; Garcia v. Bd. OfEd. OfSocorro Consol. Sch. Dist. (10th Cir. 1985) 777 F2d 1403, 1408.

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In 1992, the California Legislature enacted C.C.P.

425.16 in direct response to the disturbing

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increase in meritless lawsuits designed to chill the valid exercise of the constitutional rights of

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freedom of speech.... C.C.P.

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right not to be dragged through the courts becauseyou exercised your constitutional rights. Varian

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Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193.

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2.

425.16(a). [The] point of the anti-SLAPP statute is that you have a

STATEMENT OF PERTINENT FACTS

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Plaintiff Bloom is a basketball coach for Westlake High School (WHS), a public high school

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in Thousand Oaks, California (which happens to make Plaintiff himself a public official). Plaintiffs

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Verified Complaint at

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Sydney, the former ofwhom was formerly coached by PlaintiffBloom. Id. at 6. On or around November

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6, 2014, Plaintiff Bloom filed this lawsuit against Defendant James Clark for two (2) causes of action: 1)

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Libel and 2) Libel Per Se. See generally Plaintiffs Complaint.

5.

Defendant James Clark is the parent of two students at WHS

Sully and

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In brief, Plaintiff Bloom has sued Clark for complaining to officials of Westlake High School, the

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Conejo Valley Unified School District, and Westlake Sports Camp (a non-profit summer camp owned
and operated largely by Plaintiff Bloom) about Plaintiff Blooms on-the-job activities and about Plaintiff
3
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

425.16

Blooms personal mistreatment of Clarks two kids. Id. According to Plaintiff Bloom, Clark has

complained about Plaintiffs coaching decisions, Clark has repeatedly accused Bloom of abusing his

kids and other WHS students, he has repeatedly demanded that Bloom resign, and he has engaged in the

underlying libel to school administrators and coaching staff so as to put false pressure on those in

authority to take [away] Blooms coaching job. Id. at 9/9/9-23.

Plaintiff Bloom further has sued Clark here for Clarks threats to take legal action against Bloom

and others, both directly via lawsuit and indirectly via complaints to government agencies like the I.R.S.

and D.O.L. Id. at 9/9/16-18, 23; see also Exhibits A

entire Conejo School board with claims they were all complicit and therefore guilty of child abuse.

E to Plaintiffs Complaint [Clark threatened the

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Clark concluded his most recent rant with a threat to 12 other educators and members of the

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community.., that they... would be sued as well if his demands werent met]. Underscoring this point,

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Plaintiff Bloom filed this action on November 6, 2014, the very same day on which Clark demanded that

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Bloom resign or else be sued by Clark and other WHS parents for the aforementioned complaints.

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Exhibit D to Plaintiffs Complaint [If you dont leave on Thursday [November 6, 2014] we will, as

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parents who observed repeated abuse, retain the areas best personal injury attorney to make you and

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the District realize that repeatedly abusing kids, even for money, wont be tolerated].

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Although Plaintiff Bloom broadly claims that Clark has been defaming him for years, Bloom

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apparently bases this lawsuit entirety on six (6) discrete email messages sent by Clark between July and

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November 2014 to the Conejo Valley Unified School District, Westlake High School, and Westlake

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Sports Camp, which are attached to his Complaint as Exhibits A

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instances of Clarks alleged defamation pled with sufficient specificity in Blooms Complaint, and they

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presumably are the only instances that fall within the one-year statute of limitations under C.C.P.

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340(c). Id.

E)These emails are the only

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25

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1 Plaintiff Bloom inexplicably attaches the first two (2) separate emails jointly as Exhibit A to his Complaint rather than
treat each email message as a separate exhibit (like he does with the other four email messages).

4
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

425.16

3.

LEGAL ARGUMENT

3.1

[A] cause of action against a person arising from any act of that person in furtherance of that

LEGAL STANDARD FOR SPECIAL MOTION TO STRIKE

persons right of petition or free speech... shall be subject to a special motion.... C.C.P.

425.16(b)(1).

In 1997, the Legislature amended C.C.P.

broadly... construe[] this statute. Stats. 1997, ch. 271,

Supreme Court further directed all California Courts whenever possible... [to] interpret the First

Amendment and section 425.16 in a manner favorable to the exercise of freedom of speech, not to its

curtailment. Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1119 (quoting

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425.16(a), expressly instructing California Courts to

1; amending 425.16(a). In 1999, the California

Bradbury v. Superior Court (1996) 49 Cal.App.4th 1170, 1176).

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To analyze a Special Motion to Strike, the Court first must decide whether the defendant has

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made a sufficient threshold showing that the challenged cause(s) of action is subject to a special Motion

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under C.C.P. 425.16(e). Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130. If defendant makes this

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threshold showing, the burden shifts to the plaintiff to show a probability of prevailing on his claims. Id.

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If the plaintiff cannot meet this burden, the special motion must be granted. Id.

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17
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3.2

FIRST PRONG THE ANTI-SLAPP STATUTE INDISPUTABLY APPLIES TO

PLAINTIFFS CLAIMS AGAINST DEFENDANT CLARK HERE.
-

A cause of action is subject to a special motion to strike if it arises from acts in furtherance of
a persons right of petition or free speech... in connection with a public issue. Maranatha Corrections,

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21
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23
24
25
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LLC v. Department ofCorrections and Rehabilitation (2008) 158 Cal.App.4th 1075, 1084 (quoting C.C.P.

425.16(e)). C.C.P. 425.16(e) defines such acts as including but not being limited to the following:
(1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized
bylaw;
(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
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DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO CC.P.

425.16

1
2

(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.

Like the SLAPP statute itself, the question whether something is an issue of public interest

must be construed broadly. Hecimovich v. Encinal School Parent Teacher Organization (2012) 203

Cal.App.4th 450, 466 [internal citations omitted].

[W]we conclude that safety in youth sports, not to mention problem coaches/problem parents

in youth sports, is another issue of public interest within the SLAPP law. Hecimovich, supra, 203

Cal.App.4th at 468 (citing M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623 [molestation in youth

sports]; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547 [protection of children

10

from predators]; McGarry v. University ofSan Diego (2007) 154 Cal.App.4th 97 [firing of college football

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coach]) (other citations omitted); see also Harris v. Curtis Publishing Co. (1942) 49 Cal. App. 2d 340, 350

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[[T]he overwhelming majority of the citizens of this country are interested in such matters and in

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questions which affect the education and proper training of our youth].

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Here, Plaintiff Bloom indisputably has sued James Clark for exercising his constitutionally-

15

protected rights of petitioning government officials with his grievances and for exercising his free speech

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rights in connection with a public issue. See generally Plaintiffs Complaint; Exhibits A-E thereto.

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Specifically, public high school basketball coach Robert Bloom has sued parent James Clark for

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complaining to members of Westlake High School, Westlake Sports Camp, and the Conejo Valley

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Unified School District regarding Blooms job performance and on-the-job activities and for demanding

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that these individuals do something about the same. Id. As such, all of Clarks allegedly wrongful acts

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underlying Plaintiffs lawsuit here constitute written or oral statements made before... [an] official

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proceeding authorized by law, statements made in connection with an issue under consideration or

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review by... any other official proceeding authorized by law, statements made in a public forum in

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connection with an issue of public interest, and other conduct in furtherance of the exercise of the

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

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or an issue of public interest. C.C.P.

425.16(e).
6

DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

425.16

Insofar as Plaintiff Bloom has sued James Clark for his threats to sue Bloom, the school, and

school district if his demands were not met, this litigation-related conduct independently falls under the

protections of Civil Code

subdivision (e)... are coextensive with the litigation privilege of Civil Code section 47, subdivision (b).

A.F. Brown Electrical Contractor v. Rhino Electrical Supply (2006) 137 Cal.App.4th 1118, 1125-1126

(quoting Ruizv. Harbor View CommunityAssn. (2005) 134 Cal.App.4th 1456, 1467, fn. 3). Thus, [j]ust

as communications preparatory to or in anticipation of the bringing of an action or other official

proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b),

...such statements are equally entitled to the benefits of section 425.16. A.F. Brown, supra, 137

10

Cal.App.4th at 1126 (quotingBrggsv. Eden CouncilforHope & Opportunity (1999) 19 Cal.4th 1106, 1115).

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12
13

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3.3

47(b) and C.C.P. 425.16. Clauses

(1) and (2) of section 425.16,

SECOND PRONG THIS COURT SHOULD GRANT DEFENDANT CLARKS

SPECIAL MOTION TO STRIKE BECAUSE PLAINTIFF INDISPUTABLY HAS
SUED CLARK FOR PRIVILEGED, CONSTITUTIONALLY-PROTECTED,
NON-ACTIONABLE CONDUCT.
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To satisfy the second prong of the anti-SLAPP test, the plaintiff must demonstrate that the
complaint is both legally sufficient and supported by a prima facie showing of facts. Taus v. Loftus
(2007) 40 Cal. 4th 683, 713-14 (internal citations omitted). For these purposes, the Court must assess

16

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the defendants evidence only to determine if it defeats the plaintiffs submission as a matter of law.

Hecimovich, supra, 203 Cal.App.4th at 469-470 (internal quotations and citations omitted).
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20

21
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3.3.1

Plaintiff Impermissibly Targets Defendant Clarks Privileged and NonActionable Complaints Regarding Plaintiffs Job Performance as a Public
Employee under Civil Code 47(b).

Written and oral statements are privileged and non-actionable as a matter of law if they are made
in (3) any other official proceeding authorized by law, or (4) in the initiation or course of any other
proceeding authorized by law.... Civil Code

47(b); see also Sylmar Air Conditioning v. Pueblo

23
24
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Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1058. This privilege provides an absolute
immunity to civil liability. Brody v. Montalbano (1978) 87 Cal.App.3d 725, 733 (citing Bradley v. Hartford

Acc. &Indem. Co. (1973) 30 Cal.App.3d 818, 825).

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7
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

42516

The [Civil Code

47] privilege is designed to provide the utmost freedom of communication

between citizens and public authorities whose responsibility is to investigate wrongdoing. Lee v. Fick

(2005) 135 Cal.App.4th 89, 96 (citing Brady, supra, 87 Cal.App.3d at 733). Thus, [a] communication

to an official agency which is designed to prompt action is deemed part of an official proceeding for

purposes of section 47, subdivision (b).... Ghafur v. Bernstein (2005) 131 Cal.App.4th 1230, 1235

(quoting Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439) (citing Hagberg 2. California FederalBank

(2004) 32 Cal.4th 350, 362-364) [numerous cases apply this privilege to complaints to governmental

agencies requesting that the agency investigate or remedy wrongdoing]. The privilege applies

regardless of what action, if any, the official agency takes on a complaint. The complaint itself is part

10

of the official proceedings. Lee, supra, 1.35 Cal.App.4th at 97 (citing Brody, supra, 87 Cal.App.3d at 732).

11

The privilege applies even if the communications themselves are fraudulent, perjurious,

12

unethical, or even illegal. Kashian v. Harriman (2002) 98 Cal.App.4th 892, 920.

13

to communications made in and outside of court, including communications in which malice or intent

14

to harm is alleged. Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216. [T]he working definition of

15

judicial proceedings even includes proceedings which have the potential for becoming a court concern

16

(emphasis added). Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 393.

17

The privilege applies

It is well settled that complaints to school authorities about a teacher or principal in the

18

performance of his or her official duties are privileged for purposes of Civil Code

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135 Cal.App.4th at 96 (citing Brady, supra, 87 Cal.App.3d at 731-735; Martin v Kearney (1975) 51

20

Cal.App.3d 309); see also Ghafur, supra, 141 Cal.App.4th at 1235.

47(b). Lee, supra,

21

The facts in Lee, supra, are astoundingly similar to the facts before the Court here. They even

22

originated in the same court the Ventura County Superior Court (albeit underJudge Hutchins VCSC

23

Case No. SC038560). In Lee, [p]arents of high school baseball players urge[d] school officials to fire

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the coach[, who in turn] sue[d] the parents for libel.... 135 Cal.App.4th at 91. Specifically, the coach

25

alleged that the parents published a letter making false statements about him, just like Plaintiff Bloom

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has alleged here. Id. at 92-93; seefor comp. Plaintiffs Complaint at q7/15-20. The complaint alleged that

the letters were an attempt to have [plaintiff] removed as baseball coach, and were published to the
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DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

425.16

Conejo Valley Unified School District..., just like Plaintiff Bloom has alleged here. Id. at 92; see for

comp. Plaintiffs Complaint at 7/9/23, 26, 29, 33-36). The plaintiff coach alleged that the defendants acted

with malice and caused him to lose.., future employment opportunities, just like Plaintiff Bloom here.

Id. at p. 93; see for comp. Plaintiffs Complaint at 9/9/23, 29, 34, 36. The Court of Appeal held that the

parents Special Motion to Strike under C.C.P.

the parents complaints regarding the plaintiff coach to school authorities were absolutely privileged

under Civil Code

to prompt official action, and is privileged under Civil Code section 47, subdivision (b) ....]. Insofar as

some of plaintiff coachs claims against the parents targeted the parents discussion regarding the coach

10

between one another, the Court of Appeal held that such speech also was privileged and non-actionable

11

for purposes of Civil Code

12

and interested parents are privileged. [Plaintiff coach} cannot avoid the privilege by characterizing the

13

discussion among parents as gossip].

425.16 should have been granted in its entirety because

47. Lee at p. 96 [The inescapable conclusion is that the [parents] letter was written

47(b) and C.C.P. 425.16. Id. at p. 98 [such comments to school officials

14

In Ghafur, supra, the Court of Appeal similarly upheld the granting of a Special Motion to Strike

15

defamation claims brought by a former charter school superintendent against the Anti-Defamation

16

League and members thereof for their complaints to the State Superintendent of Public Instruction

17

urging an investigation to the [plaintiffs] links to an Islamic terrorist organization.... 131 Cal.App.4th

18

at 1230. The Court noted that even the plaintiff conceded that the defendants allegedly defamatory

19

letter complaining directly to the State Superintendent was privileged under Civil Code

20

because it was a communication to an official agency which is designed to prompt action. Id. at 1235

21

(quoting Walkerv. Kiousis (2001) 93 Cal.App.4th 1432, 1439).

47(b)

22

Here, this Court should grant Defendant Jim Clarks Special Motion in full because Plaintiff

23

Bloom indisputably has targeted Defendants constitutionally protected and absolutely privileged

24

complaints to school, school district, and summer camp officials regarding Plaintiff Bloom within the

25

meaning of Civil Code

26

libel and apparent motive was, and is to defame Bloom and to put false pressure on this in authority to

47(b). As Plaintiff Bloom himself alleges in his Complaint, Defendant Clark

take [away] Blooms coaching job. Plaintiffs Complaint at 9/23. As acknowledged by Plaintiff Bloom in
9
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.CP.

425J6

his Complaint and as set forth at considerable length in the email messages themselves, Defendant Clark

published the alleged defamatory falsehoods to the members of the Conejo Valley Unified School

District, Westlake High School, and Westlake Sports Camp to prompt official action from them in

response. Ghafur, 131 Cal.App.4th at 1235; Lee, supra, 135 Cal.App.4th at 96.

3.3.2

6
7

Plaintiff linpermissibly Targets Defendant Clarks Privileged and NonActionable Threats of Litigation and Demands Relating to the Same.

Ordinarily, a demand letter sent in anticipation of litigation is a legitimate speech or petitioning

activity that is protected under section 425.16. Maim

8
9

10
11
12

ii.

Singer (2013) 217 Cal.App.4th 1283, 1293

(citing Briggs, supra, 19 Cal.4th at 1115); see also Shekhter v. Financial Indemnity Co. (2001) 89
Cal.App.4th 141, 152; Kashian, supra, 98 Cal.App.4th at 908-909; Rohde v. Wolf (2007) 154 Cal.App.4th
28; Action Apartment Association
3 Inc. v. City ofSanta Monica (2007) 41 Cal.4th 1232, 1251. The same is

true of any pre-litigation speech or conduct, so long as it relates to litigation that is contemplated in
good faith and under serious consideration. Action Apartment Assoc., supra, 41 Cal.4th at 1251.

13

14
15

16
17
18

Here, this Court should grant Defendant Jim Clarks Special Motion in full because Plaintiff
Bloom indisputably has targeted Defendants litigation-privileged and non-actionable speech and
conduct. As set forth in Plaintiffs Complaint and every single one of the six (6) email messages attached
thereto, Defendant Clark sent these emails in significant part to threaten legal action against Bloom, the
school district, the school, and/or Westlake Sports Camp if they did not stop the alleged wrongful acts.
Exhibits A E to Plaintiffs Complaint. Plaintiff Bloom even filed this action on November 6, 2014, the

19
20
21
22

23

very same day on which Clark demanded that Bloom resign or else be sued by Clark and other WHS
parents for the aforementioned complaints. ExhibitD to Plaintiffs Complaint [If you dont leave on
Thursday [November 6, 2014] we will, as parents who observed repeated abuse, retain the areas best
personal injury attorney to make you and the District realize that repeatedly abusing kids, even for
money, wont be tolerated].

24
25

26

10
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO CC?.

425.16

3.4

1
2

SECOND PRONG
ALTERNATELY, THIS COURT SHOULD GRANT
DEFENDANTS SPECIAL MOTION BECAUSE PLAINTIFF INDISPUTABLY
CANNOT ESTABLISH THAT DEFENDANT MADE ANY OF THE
ALLEGEDLY DEFAMATORY STATEMENTS WITH ACTUAL MALICE.
-

Independent of the absolute privilege afforded by Civil Code

47(b), Defendant Clarks targeted

communications also are qualifiedly privileged under three (3) other legal doctrines, each of which

independently require Plaintiff Bloom to show clear and convincing evidence of actual malice by

Defendant Clark. Even if this Court declines to enforce Civil Code

Court must still grant Clarks Motion because Plaintiff Bloom cannot show clear and convincing

evidence of actual malice by Defendant Clark sufficient to satisfy the second prong of the C.C.P.

test. A Special Motion to Strike may be granted solely based on a plaintiffs inability to show malice

10

by defendant sufficient to overcome the defendants Special Motion. Hecimovich, supra, 203 Cal.App.4th

11

at 472 [internal citations omitted].

12

3.4.1

47(b)s absolute privilege here, this

425.16

13

Plaintiff Must Show Actual Malice by Defendant Clark Because Plaintiff Is

a General and/or Limited Purpose Public Figure By Virtue of His Status as
Head Coach of the Westlake High Schools Mens Basketball Team.

14

If a defamation plaintiff is a public figure or limited purpose public figure, the U.S. Constitution

15

requires proof of actual malice on defendants part before any liability can be imposed. New York Times

16

Co. v. Sullivan 376 U.S. 254, 279-80 (1964).

17

A public figure is one who has such pervasive fame or notoriety that he becomes a public figure

18

for all purposes and in all contexts, whereas a limited purpose public figure is one who voluntarily

19

injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a

20

limited range of issues. Gertzv. Robert Welch (1974) 418 U.S. 323, 351.

21

Sometimes position alone can make one a public figure. Barry v. Time, Inc. (N.D. Cal. 1984)

22

584 F.Supp. 1110, 1118 (citing Curtis Publishing Co. v. Butts (1967) 388 U.s. 130; Chuy v. Philadelphia

23

Eagles Football Club (E.D. Pa. 1977) 431 F.Supp. 254, 267, affd, 595 F.2d 1265 (3d Cir. 1979) (en banc)).

24

The position itself may be so prominent that any occupant unavoidably enters the limelight and thus

25

becomes generally known in the community

26

position may include decision making that affects significantly one or more public controversies, in

--

a general public figure. Similarly, the responsibilities of a

which case the occupant becomes a limited public figure for those controversies. Id. Such a person may
11
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO CC.P. 425.16

invite[] attention and comment by his decision to accept a position which, by its very nature, puts the

holder of that position in the center of a public controversy. Id. (quoting Gertz, supra, 418 U.S. at 351).

The U.S. Supreme Court and subordinate courts have consistently held that professionally-

employed coaches constitute at minimum limited purpose public figures. Curtis Publishing Co. v. Butts

(1967) 388 U.S. 130 [college football coach]; Barry v. Time, Inc. (N.D. Cal. 1984) 584 F.Supp. 1110

[college basketball coach]. As explained in Barry, supra, a long line of cases, beginning with the

Supreme Courts opinion in Butts [has found that] ones voluntary decision to pursue a career in sports,

whether as an athlete or a coach, invites attention and comment regarding his job performance and

thus constitutes an assumption of the risk of negative publicity. 584 F.Supp. at 1119.

10

In Curtis, supra, 388 U.S. at 135-136, the U.S. Supreme Court held that the plaintiff was a public

11

figure because he was the athletic director of the University of Georgia and had overall responsibility

12

for the administration of [the entire universitys] athletic program. In Barry, supra, 584 F.Supp. at 1121,

13

the U.S. District Court held that the plaintiff was a limited public figure because he was employed as the

14

head basketball coach at a prominent university and as such, voluntarily accepted a position which

15

inevitably made him the focal point of substantial media attention with regard to his team.

16

Here, Plaintiff Bloom is at minimum a limited purpose public figure, if not a general purpose

17

public figure, by and through his position as Head Coach of the Westlake High School Mens Basketball

18

Team. Plaintiffs Complaint at 5. Plaintiff has repeatedly made comments to local press regarding the

19

teams performance and prospects, and he has been criticized by parents and press commenters

20

regarding the same, as well as his own job performance. True and correct copies of exemplar press stories

21

reflecting the same are attached to the Deci. Muller as Exhibit No. 1.

22
23

3.4.2

Plaintiff Must Show Actual Malice by Defendant Because Plaintiff Is a

General or Limited Purpose Public Figure as a Public Official.

The U.S. Supreme Court and subordinate courts have consistently held that public officials
24

constitute public figures who must show actual malice for defamation claims. New York Times Co., supra,
25

26

376 U.S. at 279-280. The rule reflects our profound national commitment to the principle that debate
on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement,
12
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

425.16

caustic, and sometimes unpleasantly sharp attacks on government and public officials. Ghafur, supra,

131 Cal.App.4th at 1236 (quoting New York Times Co., supra, 376 U.S. at p. 270). Public officials are

held to a different rule than private individuals because they assume a greater risk of public scrutiny by

seeking public office, and generally have greater access to channels of effective communication to rebut

false charges. Id. (citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 344).

The employees position must be one which would invite public scrutiny and discussion of the

person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in

controversy. Rosenblatt, supra, 383 U.S. at 86-87, fn. 13). In Kahn v. Bower (1991) 232 Cal.App.3d 1599,

1612, the California Court of Appeal held that a public social worker constituted a public official for

10

purposes of a defamation claim even though she had no significant control over governmental policy

11

because she possessed considerable power over the lives affected by her work as a child welfare

12

worker, which in turn made her to the families of the children she served the very epitome of

13

government. 232 Cal.App.3d atp. 1612 (internal quotation omitted).

14

Here, Plaintiff Bloom is at minimum a limited purpose public figure, if not a general purpose

15

public figure, by and through his position as a public official, which in turn stems from his status as head

16

coach of the Westlake High School basketball team. Plaintiffs Complaint at 9/5. By and through his head

17

coach position, Plaintiff Bloom indisputably had considerable power over the lives affected by his

18

work. Plaintiff Bloom himself acknowledges in his verified Complaint that he effectively is a public

19

official, whose very position invite[s] public scrutiny and discussion of the person holding it... within

20

the legal meaning set forth above. Plaintiffs Complaint at 9/9 [Bloom, as an experienced and successful

21

youth coach, accepted that parent criticism comes with [the] job...].

22
23

3.4.3

Plaintiff Bloom Must Show Actual Malice by Defendant Clark Because

Clarks Statements Are Qualifiedly Privileged Under Civil Code 47(c).

Under Civil Code

24

47(c), communications are qualifiedly privileged, i.e. a plaintiff must

additionally show they were made with actual malice, if they are made to a person interested therein,
25

26

(1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as

13
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P. 425.16

to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who

is requested by the person interested to give the information.

In Hecimovich, supra, the Court of Appeal explained that parent complaints about a volunteer

basketball coachs job performance to other parents, school officials, other coaches, and league parents

all constituted communications qualifiedly protected under Civil Code

But even assuming that plaintiff could produce admissible evidence of the essential elements of a claim

for defamation, his claim would fail because of the privilege in Civil Code section 47, subdivision (c)...

As the Court further explained, all three defendants testified that all communications by them were to

interested persons who either requested the information or were entitled to it[, which included] school

10

officials, PTO members responsible for the boys basketball program, the assistant coach, parents of the

11

child player, and legal parents. Id. at 471-472.

12

47(c). 203 CaI.App.4th at 471:

Similarly in Martin v. Kearney (1975) 51 Cal.App.3d 309, 311-312 (citing Civil Code 47(c)s

13

predecessor Civil Code

14

a public school teacher based on parent complaints to school officials about the teacher. The Court

15

explained that [ajs parents of school children, defendants were interested persons directing their

16

communications to other interested persons, the school officials, such that the communications were

17

protected by Civil Code

18

[o]ne of the crosses a public school teacher must bear is intemperate complaint addressed to school

19

administrators by overly solicitous parents concerned about the teachers conduct in the classroom.

20

Since the law compels parents to send their children to school, appropriate channels for the airing of

21

supposed grievances against the operation of the school system must remain open. Id. (internal citation

22

omitted).

23

47(3)), the California Court of Appeal upheld the dismissal of libel claims by

47(c) s qualified privilege. Id. at 312. As the Martin Court further explained,

Here, Plaintiff Bloom must independently show actual malice by Defendant Clark because all of

24

Clarks targeted communications fall within the qualified privilege afforded under Civil Code

25

As in Hecimovich, supra, and Martin, supra, Defendant Clark indisputably made these statements to

26

officials of the school district, school, sports camp, and to at least one fellow parent, as one interested

47(c).

person to others. Exhibits A E to Plaintiffs Complaint.

14

DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P. 425.16

3.4.4

Legal Standard for Actual Malice

Actual malice in the context of defamation claim is extremely limited in scope and does not

refer to ill will, hostility, or similar such negative feelings by a defendant toward a plaintiff. Christian

Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 92. Debate on public issues will not be uninhibited

if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did

speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the

ascertainment of truth. Garrison v. Louisiana (1964) 379 U.s. 64, 73.

To establish actual malice for purposes of defamation, plaintiff must show that the defendant

either knew the statements were false or show that the defendant had reckless disregard for the truth or

10

falsity of the statements made. Khawarv. Globe International, Inc. (1998) 19 Cal.4th 254, 262-263.

11

Reckless disregard means that the defendant subjectively entertained serious doubts as to

12

the truth of the statements made. Khawar, supra, 19 Cal.4th at 262-263. Lack of due care is not the

13

measure of liability, nor is gross or even extreme negligence. Christian Research Institute, supra, 148

14

Cal.App.4th at 90 (quoting McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 860). Thus mere failure to

15

investigate the truthfulness of a statement, even when a reasonably prudent person would have done so,

16

is insufficient to demonstrate actual malice. Christian Research Institute, supra, 148 CaLApp.4th at 90

17

(quoting AnnetteF. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1169).

18

Either type of actual malice must be shown by clear and convincing evidence. Harte-Hanks

19

Communications, Inc. v. Connaughton (1989) 491 U.S. 657, 658. The clear and convincing standard is a

20

heavy burden, far in excess of the preponderance sufficient for most civil litigation. Christian Research

21

Institute v. Alnor (2007) 148 Cal.App.4th 71, 84 (internal citation omitted).

22

3.4.5

23

Plaintiff Bloom Cannot Possibly Show Clear and Convincing Evidence of

Actual Malice by Defendant Clark Because Clark Had More Than Sufficient
Factual Grounds for His Allegedly Defamatory Communications.

24

Here, this Court must grant Defendants Special Motion to Strike because it is impossible for

25

Plaintiff Bloom to meet his heavy burden and show clear and convincing evidence of Defendant

26

Clarks actual malice sufficient to satisfy the second prong of C.C.P. 425.16s test. As set forth above
and in the accompanying Declarations of James Clark, Sully Clark, and Cynthia Truhan, Defendant
15
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P. 425.16

Clark has relied on considerable first-hand knowledge, documentary evidence, and his communications

with his son and other WHS parents establishing the truth and/or substantial truth of every single one

of his allegedly defamatory claims about Plaintiff Bloom. See generally accompanying Declaration of James

Clark, Declaration of Sully Clark, Declaration of Cynthia Truhan, exhibits thereto. As set forth in these

accompanying papers, Defendant Clark personally observed, learned from his son and from parents of

other WHS students, and/or learned through review of public records online a number of troubling facts

about Plaintiff Blooms side businesses

but not limited to the following:

1.

Westlake Sports Camp and Game On! Westlake, including

Defendant Clark discovered hundreds of thousands of dollars in troubling expense

10

entries on the publicly-available 990 Forms, all of which potentially constitute serious

11

criminal violations of federal law.

12

2.

Defendant Clark learned that his minor-age son Sully Clark and other members of the

13

WHS basketball team were coerced by Plaintiff Bloom into working for Blooms non-

14

profit summer camp as its camp counselors for free, despite working upwards of thirty

15

hours per week for up to eight weeks per summer.

16

3.

Defendant Clark learned that Plaintiff Bloom used his status as WHS basketball coach to

17

cause WHS administrative staff to serve as his non-profit camps own administrative

18

staff, instructing Sully Clark and other members of the basketball team to submit camp

19

employment paperwork through school staff members.

20

4.

Most distressingly, Defendant Clark learned from his son Sully Clark all about the

21

emotionally abusive and bullying behavior regularly engaged in by Plaintiff Bloom toward

22

Sully and other members of the basketball team.

23

Because Defendant Clark indisputably relied on considerable first-hand knowledge, reliable witnesses

24

(his son and fellow WHS concerned parents) and reliable documentary evidence to draw his conclusions

25

about Plaintiff Bloom which in turn underlie his allegedly defamatory complaints, it is impossible for

26

PlaintiffBloom to establish via any evidentiary standard, let alone via clear and convincing evidence, that
16
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

42516

Defendant Clark made false statements about Plaintiffknowingly and/or with reckless disregard for their

truth or falsity.

3.5

THIS COURT SHOULD GRANT DEFENDANT CLARKS SPECIAL MOTION

TO STRIKE BECAUSE PLAINTIFF BLOOM CANNOT ESTABLISH THAT
CLARKS ALLEGEDLY DEFAMATORY STATEMENTS ARE FALSE.

Truth... is an absolute defense to any libel action. In order to establish the defense, the

defendant need not prove the literal truth of the allegedly libelous accusation, so long as the imputation

is substantially true so as to justifr the gist or sting of the remark. Campanelli v. Regents of Univ. of

Cal. (1996) 44 Cal.App.4th 572, 581-582 (internal citations omitted).

Here, even if this Court concludes that Plaintiff Bloom has not targeted Defendant Clarks

10

absolutely privileged or qualifiedly privileged conduct, this Court must still grant Defendants Special

11

Motion to Strike because the allegedly defamatory statements are all true. As set forth above and in the

12

accompanying Declarations ofJames Clark, Sully Clark, and Cynthia Truhan, Defendant has uncovered

13

considerable evidence establishing the truth and/or substantial truth of every single one of his allegedly

14

defamatory complaints about Plaintiff Bloom.

15

4.

CONCLUSION

16

For the foregoing reasons, Defendant James Clark respectfully requests this Court to grant his

17

Special Motion to Strike Plaintiff Robert Blooms Complaint in its entirety and dismiss Plaintiff Blooms

18

Complaint with prejudice pursuant to C.C.P.

425.16.

19

DATED: January 9, 2015

FINK, ST IN ERG

20
21
22

By:
Keith A. Fink
OlafJ. Muller
Attorneys for Defendant
JAMES CLARK

23
24
25
26

17
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P. 425J6

PROOFOFSERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not
a party to the within action; my business address is: 11500 Olympic Boulevard, Suite 316, Los Angeles,
California, 90064.

4
5
6
7

9
10
11

12
13
14

On January 9, 2015, I served the document described as DEFENDANT JAMES CLARKS

NOTICE OF SPECIAL MOTION AND SPECIAL MOTION TO STRIKE PLAINTIFFS
COMPLAINT PURSUANT TO C.C.P. 425.16; MEMORANDUM OF POINTS AN])
AUTHORITIES on all interested parties in this action as follows:
[X]

Judicial Council of California

455 Golden Gate Avenue
San Francisco, CA 94102-3660

Service required under C. C.P.

E]

(BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the
addressee.

[]

BY FACSIMILE
Using fax number (310) 268-0790 I transmitted such document by facsimile machine, pursuant
to California Rules of Court 2001 et q. The facsimile machine complied with Rule 2003(3).
The transmission was reported as complete. I caused the machine to print a transmission report
of the transmission, a copy of which is attached to the declaration. I am employed in the County
of Los Angeles, State of California.

21
22
[X]

(STATE)
I declare under penalty of perjury under the laws of the State of
California that the above is true and correct.

{]

(FEDERAL) I declare that I am employed in the office of a member of the bar

of the court at whose direction the service was made.

24

26

425.16(j)

BY MAIL
[X]
As follows: I am readily familiar with the firms practice for collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S.
Postal Service on that same day with, postage thereon fully prepaid at Los Angeles,
California in the ordinary course of business. I am aware that on motion of the party
served, service is, presumed invalid if postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.

19

25

[X]

17

23

the original [X] true copies thereof enclosed in sealed envelopes addressed as

Attorney for PlaintiffRobert Bloom

16

20

[]

James P. Thompson
LAW OFFICE OF JAMES THOMPSON
5776 D. Lindero Cyn Rd., Suite 417
Westlake Village, CA 91362

15

18

by placing
follows:

Dated: January 9, 2015

By:

\jjieather silrdoffV
18
DEFENDANTS SPECIAL MOTION TO STRIKE PLAINTIFFS COMPLAINT PURSUANT TO C.C.P.

425.16