Arax v. Thomas

1

DON ARA ARAX, Plaintiff and Respondent, v. KESHIA THOMAS et al., Defendants and Appellants

F085518

California Court of Appeals, Fifth District

January 31, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No 22CECG02449, Kristi Culver Kapetan, Judge.

Bruce J. Berger Law Firm, Bruce J. Berger and Joshua D. Milton for Defendant and Appellant Keshia Thomas.

Whitney, Thompson & Jeffcoach, Mandy L. Jeffcoach, Kristi D. Marshall and Paul R. Gaus for Defendant and Appellant Fresno Unified School District.

Whelan Law Group, Brian D. Whelan and Joseph A. Stolz for Plaintiff and Respondent.

OPINION

PENA Acting P. J.

Don Ara Arax coached high school football in the Fresno Unified School District (FUSD). Keshia Thomas was/is an elected member of the FUSD Board of Trustees.

During a media appearance, Thomas accused Arax of using a particular racial slur ("the N-word") while speaking to her son during football practice. Arax denied the accusation and sued Thomas for defamation. FUSD was named as a defendant based on a theory of respondeat superior.

Thomas and FUSD filed special motions to strike the complaint pursuant to Code of Civil Procedure section 425.16, also known as the anti-SLAPP statute. "SLAPP" is an acronym for Strategic Lawsuit Against Public Participation. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 815, fn. 1.) Thomas and FUSD now appeal from orders denying their respective motions. We conclude the motions were appropriately denied.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2022, Arax filed a civil complaint alleging a cause of action for defamation against Thomas and FUSD. In October 2022, Thomas and FUSD filed separate anti-SLAPP motions. The motions were heard on November 17, 2022. The trial court later issued written orders partially granting and partially denying both motions. Thomas and FUSD each filed timely notices of appeal.

Arax's Allegations and Supporting Evidence

According to sworn declarations, Arax has been a teacher at Bullard High School since approximately April 2000 and, "[i]n that time period, ... also served as [Bullard's] Varsity Football Head Coach." Thomas, who was elected to the FUSD Board of Trustees in 2018, represents a geographic region within FUSD that includes Edison High School. Thomas does not represent the region in which Bullard High School is located.

Thomas's "youngest son" attended Bullard High School from at least 2021 to 2022. However, Thomas's youngest son is not the person to whom she referred in the allegedly defamatory statements about Arax. The statements concerned her "middle son."

Arax's complaint and declarations allege Thomas developed "animosity" toward him during the summer of 2021 and her animosity was later "reignited and fueled" by an incident involving her "youngest son" in December 2021. Those allegations concern the issue of malice and are detailed elsewhere in the opinion.

Thomas's allegedly defamatory statements were preceded and ostensibly precipitated by an incident at Bullard High School on May 4 2022. The complaint alleges a student was photographed wearing "what appeared to be a Ku Klux Klan hood. ... Ultimately, another student posted the picture to social media[,] causing an uproar, public outcry, and rush to judgment."

Two days later, on May 6, 2022, Thomas attended a morning staff meeting at Bullard High School. Arax contends Thomas's presence at the meeting was "highly irregular." He further contends that during the meeting, Thomas "accused 'white' Bullard High School coaches of using the 'N-word' on campus." Thomas did not identify anyone by name. However, in light of subsequent events, Arax claims Thomas was making an implied accusation against him.

On May 9, 2022, Thomas attended a press conference with the FUSD superintendent and two other FUSD trustees. During her appearance, Arax alleges Thomas publicly "claimed FUSD had historically covered up and ignored past instances of racist behavior at Bullard High School and called for the creation of a special commission to investigate and recommend appropriate remediation measures." Thomas also allegedly "stated that Bullard High School, and specifically certain members of its staff were racist against African American students." Although Thomas did not identify any staff by name, Arax contends this was another implied accusation against him.

On May 17, 2022, Thomas appeared as a guest on "Unfiltered," which is described in the record as a "public affairs program hosted by GV Wire publisher Darius Assemi [that is] live-streamed on Facebook." Arax's evidence includes promotional material showing the program is also known as "The Darius, Steve &Mike Show," referring to Assemi and cohosts Steve Brandau (a member of the Fresno County Board of Supervisors) and Mike Karbassi (a member of the Fresno City Council). The promotional material described the evening's topic as "Bullard High and Racism in Fresno Unified." It further advertised "Special Guests," with a photograph of Thomas above her name and the title of "Fresno Unified Trustee." Two additional "Special Guests" (the "Bullard High School PTA President" and a "Mother of [a] Bullard High School Student") were depicted in the same manner.

The following exchange took place between Thomas and host Darius Assemi during Thomas's appearance on the "Unfiltered" program:

Thomas: "'Then my son, my middle son, goes to football practice, where he has Arax calling him [the N-word] and he decides he's not playing for Bullard anymore. Ok. And he ends up playing at Edison.

Assemi: "'Could you tell our audience ... you said Arax. Who is Arax?

Thomas: "'Yeah. He's the football coach at Bullard. You know ... so my son, when he was starting high school, my 23 year old, when he was starting high school he said "mom I am not going to play football for them because the coach is saying this to me, and I am not going ." and this is before I became a trustee.'"

On the night of the "Unfiltered" broadcast, Arax was contacted by a GV Wire reporter for a response to Thomas's accusation. Arax claims to have told the reporter it was "ridiculous and false." Three days later, on May 20, 2022, GV Wire published a written article by the same reporter under the headline, "Bullard Coach Calls Trustee a 'Liar' on Racial Slur Accusation, Says 'Investigate Me.'"

In the GV Wire article of May 20, 2022, Thomas's allegedly defamatory statements were construed to mean her middle son had once been "a Bullard student and football player." It is unclear from the record whether, or to what extent, this was based on the reporter's own interpretation of Thomas's story. However, the article claimed Thomas had made additional statements to the reporter regarding Arax's denial of the accusation: "'First and foremost I have no reason to lie,' [Thomas] said in a text Friday afternoon to GV Wire. 'I'm sure my son and his friends who were on the team would be willing to make a statement seeing as they are graduates and he [i.e., Arax] is no longer a threat to their education.'"

Thomas was also quoted in the GV Wire article as saying Arax "is 'completely unfit to be in this discussion [about racism] ... [and should] (refrain) from referring to [students] in a demeaning manner."

Arax's complaint alleges Thomas's story is provably false because her middle son never attended Bullard High School. Therefore, he was never a member of Bullard's football team. Arax has further denied ever calling any student the N-word, and he maintains Thomas's story "was a fabrication and a lie."

Thomas, in support of her anti-SLAPP motion, filed a declaration in which she attempted to explain the statements at issue:

"In or around Summer 2013, Mr. Arax invited my middle son ... to participate in a summer football camp. At the time [my middle son] was a student at Tenaya Middle School within FUSD and Mr. Arax was the head football coach at Bullard High School. Mr. Arax waived fees to participate in the camp and, even though [my middle son] would have likely gone to Bullard High School based on his attendance at Tenaya Middle School, I believe Mr. Arax invited [him] to the summer camp to recruit him to play football for Bullard High School.

"A few days after the start of the summer camp, [my middle son] told me Mr. Arax used the [N-word] during football practice in reference to Black players, including [him], and that he would not play football for Mr. Arax or Bullard High School because of Mr. Arax's use of that slur. I believed my son when he told me Mr. Arax used that slur, and I still believe him to this day."

In a sworn declaration responsive to Thomas's motion, Arax said he had searched for and had not located any records verifying the statements regarding her son's camp attendance or the waiver of fees. Arax further declared that he did not coach the "2013 Summer Camp." The camp was run by the head coach of Bullard High School's freshman and junior varsity football teams, and by two African American assistant coaches. Those three coaches provided supporting declarations attesting to their involvement in the camp, and all denied having knowledge of any coach using a racial slur toward any camp participants. The declarants further attested to having never heard Arax use the N-word.

Regarding the liability of FUSD, the complaint alleges Thomas "was acting as an agent of FUSD and within the course and scope of her agency as a FUSD agent and elected trustee when she defamed [Arax]." The complaint further alleges FUSD and Thomas "conspired to, and in fact, did negligently recklessly, and intentionally cause excessive and unsolicited internal and external publications of defamation, of and concerning [Arax...