Bishop v. Bishop's Sch.

• Decision Date: 21 December 2022
• Docket Number: D079827
• Citation: 86 Cal.App.5th 893,302 Cal.Rptr.3d 594
• Parties: Chad BISHOP, Plaintiff and Appellant, v. The BISHOP'S SCHOOL, Defendant and Appellant; Ron Kim, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

86 Cal.App.5th 893

302 Cal.Rptr.3d 594

Chad BISHOP, Plaintiff and Appellant,

v. The BISHOP'S SCHOOL, Defendant and Appellant;Ron Kim, Defendant and Respondent.

D079827

Court of Appeal, Fourth District, Division 1, California.

Filed December 21, 2022

Edward F. O'Connor, Irvine, for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Mark H. Meyerhoff and Nicholas M. Grether, Los Angeles, for Defendant and Appellant The Bishop's School and for Defendant and Respondent Ron Kim.

BUCHANAN, J.

The Bishop's School (the School) terminated Chad Bishop's (Bishop) employment as a teacher for the School after it became aware of a text exchange between Bishop and a former student. Bishop filed a lawsuit asserting a breach of contract claim against the School and defamation claims against the School and Ron Kim, the Head of the School, based on the termination letter they sent to Bishop and a statement Kim made that was published in the student newspaper. Defendants filed a special motion to strike the first amended complaint as a strategic lawsuit against public participation (SLAPP) as well as a demurrer. The trial court granted defendants' anti-SLAPP motion as to the defamation claims but denied it as to the contract claim against the School. The court also overruled the School's demurrer to the contract claim.

Bishop timely appealed the anti-SLAPP ruling. On cross-appeal, the School challenges the court's order denying anti-SLAPP protection for the contract claim. In its briefing on appeal, the School also seeks a writ of mandate directing the trial court to sustain its demurrer to the contract claim. We conclude that (1) defendants did not meet their burden to show that Bishop's allegations regarding the termination letter, which supports the defamation claim, or the termination itself, which supports the contract claim, involve protected activity; (2) defendants met their burden to show that Kim's statement was protected activity, and Bishop failed to show that the defamation claim as based on that activity had minimal merit; and (3) without having filed a writ petition, there is no basis for the School to seek writ relief from the court's order overruling its demurrer ruling on the contract claim. We therefore affirm in part and reverse in part the trial court's order and remand the matter with directions.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background

Bishop was employed as a teacher at the School for 16 years. In March 2019, Bishop and the School entered into a contract for the School to employ Bishop as an English teacher for the 2019–2020 academic year.

In September 2019, Bishop and defendant Kendall Forte, a 19-year-old former student of the School who had graduated in June 2019, exchanged text messages characterized by the parties as "flirtatious." Bishop and Forte exchanged the following text messages:

"[Bishop:] Did you try the book? If it's too much spark note the chapters that aren't about Oscar.

"[Forte:] HAHAHAH lol I haven't started[.] [¶] I'm drinking margs rn Chad

"[Bishop:] I just got back from Mexico. Might have had my share. Glad you're keeping busy though.

"[Forte:] Chad sit on my face[.] [¶] OMG MY FRIEND SENT THAT

"[Bishop:] I didn't realize we had that kind of relationship. [Man shrugging emoji]

"[Forte:] Do we tho?

"[Bishop:] I can't figure out how either of us would benefit from that. I'm way to [sic ] heavy.

"[Forte:] I'm into dad bods "[Bishop:] I had [sic ] one of the daddest possible bods. [¶] Finish those margs and get to reading. Remember my advice about the spark notes.

"[Forte:] Margs be finished[.] [¶] And more than happy ... have a dadbod[ ]. [¶] Not that I haven't noticed

"[Bishop:] That's definitely the margs talking.

"[Forte:] Dadddddyyy[.] [¶] I'm just speaking my mind

"[Bishop:] On the off chance you're being serious I'm all ready to try so [sic ] sexting. This is a photo of me getting out of the shower this morning. [picture of movie character ‘Fat Bastard’]

"[Forte:] Chad I'm serious and I thought it's been obvious from over the years [three tongue emojis]

"[Bishop:] You're definitely not serious but I appreciate the compliments. And the few moments of excitement this text chain has brought me. [¶] Now get back to your friends. Shake off those margs and make some appropriately aged young mans day.

"[Forte:] Omg Chad I'm serious[.] [¶] There a reason I would visit ur office everyday

"[Bishop:] I'm seriously at a loss for words. [¶] Also I still don't believe you. [Man shrugging emoji] see why I never got laid in high school? [¶] ... [¶]

"[Bishop:] I think maybe the problem is all those times you said I gave you Santa vibes. [Santa face emoji]

"[Forte:] Believe me[.] [¶] Let me be yo elf

"[Bishop:] Hahaha. We can have this conversation again sometime without the margs. If you tell me the same again I'll be honestly flattered.

"[Forte:] Flattered or down?

"[Bishop:] [Man shrugging emoji]

"[Forte:] That's like not an answer "[Bishop:] The correct answer is that you're too young and my student and ... and that's the only answer you're going to get from me over text.

"[Forte:] [Disliked ‘The correct answer is that you're too young and my student and ... and that's the only answer you're going to get from me over text.’]

"[Bishop:] Don't give me that dislike. I'm pretty sure you already know the answer to your question anyway.

"[Forte:] Why wouldn't you give me a real answer over text like we r the duo

"[Bishop:] Read your book Kendall. :-)"

The School and Kim learned about the text message exchange between Bishop and Forte from one of the School's current students. Forte had posted an altered version of the texts on social media, and the School received communications from concerned parents about the incident.

Kim met with Bishop soon after he received a copy of the text exchange, and the School then placed Bishop on administrative leave. Five days later, Kim again met with Bishop and informed him that the School was terminating his employment, effective immediately. Later that day, Kim sent Bishop a termination letter explaining the basis for the School's decision. The letter stated that the School had terminated Bishop's employment "for good cause" because he had "violated the School's policies and conduct expectations, failed to abide by prior guidance and directives from the School, brought discredit to [himself,] and breached the trust necessary for [him] to remain a Bishop's teacher." The letter further stated: "Your behavior also demonstrates exceedingly poor judgment.... [¶] ... [¶] Your behavior violates the Fundamental Standard of The Bishop's School, has brought disrepute to both you and Bishop's, and impairs your usefulness and ability to perform the duties of a faculty member at Bishop's. Your behavior has damaged the trust that students, parents, and the School, expect of you as a faculty member at The Bishop's School."

In December 2020, after Bishop filed his original complaint, Kim made a statement to the School's student-run newspaper, which published an article about Bishop's lawsuit. The newspaper article quoted Kim as follows: "Mr. Kim declined to comment on aspects of the case, saying, ‘We are committed to the safety and well-being of all students past and present. Out of respect for the privacy of our community, it is not the School's practice to share specific information about our students, alumni, parents, staff, or faculty.’ "

B. The First Amended Complaint, Demurrer, and Special Motion to Strike

In January 2021, Bishop filed a first amended complaint against the School for breach of contract and against the School and Kim for defamation.¹ Bishop alleged that the School's termination of his employment was a breach of his contract with the School. He also alleged that the letter of termination the School and Kim sent to him contained false and defamatory statements about Bishop's conduct that were intended to and did harm his reputation, including by making it impossible for Bishop to obtain employment as a teacher. Bishop further alleged that Kim's statement to the School's student newspaper was false, defamatory, made with malice, and caused him damage.

Defendants filed a demurrer to and special motion to strike pursuant to Code of Civil Procedure section 425.16,² known as an anti-SLAPP motion, against the entire complaint. In the demurrer, they argued that Bishop's contract claim failed because he did not identify a provision of the employment agreement that was breached, and his defamation claims failed because he did not identify specific defamatory language, the letter was not published, and the challenged statements were truthful as well as privileged. In the anti-SLAPP motion, defendants argued that all of Bishop's claims were based on speech and conduct implicating matters of public interest, including protecting children from inappropriate conduct from a teacher and maintaining the necessary integrity and trust among the School and the School's teachers, parents, students, and staff. Defendants asserted that because Bishop could not establish a probability of prevailing on his claims, they must be stricken under the anti-SLAPP statute. In support of the anti-SLAPP motion, defendants submitted a declaration from Kim, screenshots of the text exchange, the School's employment agreement with Bishop, portions of the School's Employee Handbook, the termination letter, and the December 2020 student newspaper article containing Kim's quote.

Bishop, in opposition to the demurrer, argued that he had sufficiently stated a cause of action for breach of contract and defamation. He opposed the anti-SLAPP motion on several grounds, including that the challenged speech was merely informational and could not be viewed as contributing to a discussion, debate, or controversy, as required to claim anti-SLAPP protection. Bishop maintained that even if the speech was protected by the anti-SLAPP statute, he had demonstrated that the statements in question were defamatory and untrue, he was required to...