Padron v. Moreno

ALFONSO PADRON, Plaintiff and Appellant, v. STEPHANIE MORENO et al., Defendants and Respondents.

F073851

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

April 2, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 15CECG03521)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge.

Alfonso Padron, in pro. per., for Plaintiff and Appellant.

Jacobson, Hansen & McQuillan, Steven M. McQuillan and Leith B. Hansen for Defendants and Respondents.

-ooOoo- At a meeting of the Board of Trustees of the Parlier Unified School District (Board) in which special education issues were being considered, plaintiff Alfonso Padron disclosed during the time for public comment that one of the Board members, defendant Stephanie Moreno, has a young child with a disability. Moreno felt that her child's privacy had been unfairly invaded by plaintiff, and at a subsequent Board meeting she responded by criticizing plaintiff's public disclosure of her child's disability. She reiterated her criticisms of plaintiff in a Facebook post. The superintendent, defendant Edward Lucero, replied to Moreno's Facebook post by opining that plaintiff had behaved like a bully. Plaintiff's reaction was to file the present lawsuit against Moreno, Lucero and Board member Edgar Pelayo (together, defendants), alleging defamation, intentional infliction of emotional distress, and violations of statute.

In the present appeal from a judgment of dismissal, plaintiff challenges two distinct rulings by the trial court. The first is the trial court's order granting defendants' motion to set aside default pursuant to attorney affidavit(s) of fault. The second is the trial court's decision to grant defendants' special motion to strike plaintiff's complaint under Code of Civil Procedure¹ section 425.16 (or the anti-SLAPP statute). We agree with defendants that both motions were correctly granted by the trial court, and no error or abuse of discretion has been shown. Accordingly, we affirm the orders and judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

At all relevant times, defendant Moreno was a member of the Board, as was defendant Edgar Pelayo. Defendant Edward Lucero was the Superintendent of the Parlier Unified School District. All three were present at the subject Board meetings on September 22, 2015, and October 27, 2015.

Public Remarks at Issue

At a meeting of the Board on September 22, 2015, during the time provided for public comment, plaintiff spoke to oppose the Board's proposal to fill a special education position with an individual who had obtained a waiver from certain special education certification requirements. During his speech to the Board, as described in plaintiff's complaint, "Plaintiff commented that students with disabilities were a protected population and that Defendant Moreno was well aware since it was Plaintiff's understanding that Defendant Moreno had a child with a disability." At that time, Moreno had not made it known to the public that she had an autistic son.

At subsequent meetings of the Board, including the October 27, 2015, meeting, special education staffing concerns remained an ongoing issue before the Board. At the October 27, 2015, meeting, Moreno responded to the comments made by plaintiff about her child. According to Moreno, her goal in doing so was "to encourage the Parlier Unified School District community to respect the privacy of children and families affected by Autism as the Board addresses special education issues." The statement she made at that Board meeting was as follows:

"Did you know that 1 in 68 births in the US result in a child being diagnosed with Autism? At the meeting on 9/22/15 a comment was made about me having a son with special needs. I want to be clear to say that I have no issue with being questioned about my decisions as a board member. However[,] I feel it was a VIOLATION of both my son and my family's rights to PRIVACY and CONFIDENTIALITY. Lastly, I would like to say I find it DISGUSTING that a grown man would feel the need to rob an innocent three-year-old child of his rights and go so far as to take a public forum and announce that he has a disability!! I would suggest that people be careful in the comments they make because let me remind you like I said previously 1 in 68 children are born with autism so you never know if and when it may appear in your family. Because of the actions of this individual I had people calling, texting, and approaching me inquiring about my son[']s disability. With him barely having been diagnosed in May we were not as a family yet comfortable telling everyone about his disability. I am proud to have a son with Autism and NO ONE can take that away from me, I will continue to ADVOCATE both for my son and the children of Parlier!"

Shortly thereafter, Moreno posted on Facebook a verbatim transcript of the statement she made at the Board meeting, entitling the Facebook post as "feeling proud of my Autistic son," which included the following additional commentary:

"At the Board meeting held on 9/22/15 a comment was made about my having a son with special needs. ALFONSO PADRON was upset about an agenda item that dealt with hiring a speech language pathologist, but instead of attacking the issue he chose to target me personally. Although he stands at the podium and states 'it's not personal' I don't know any way it couldn't be when he clearly turned to address me and said 'Mrs. Moreno should know she has a son with special needs.' Needless to say I was devastated! Below is the speech I gave at this Tuesday's board meeting to defend my son. I fully understood that being in public office I would be challenged on the decisions I made (as an adult) but never did I feel someone would stoop SO LOW and target my innocent child."

District Superintendent Lucero responded on Facebook to Moreno's post by referring to plaintiff as a "Bully." Board Member Pelayo was alleged by plaintiff to have condoned or facilitated Moreno's speech at the Board meeting.

Plaintiff's Complaint and Defendants' Default

Plaintiff filed his complaint on November 17, 2015, naming Moreno, Lucero and Pelayo as defendants. Plaintiff's complaint sought damages against defendants under causes of action for defamation, intentional infliction of emotional distress, and violation of Civil Code sections 52.1 and 51.7 (referred to in plaintiff's complaint as the Bane Act and the Ralph Civil Rights Act).²

Plaintiff personally served the complaint and summons on all three defendants on November 17, 2015, at a Board meeting. The complaint and summonses were forwarded by Lucero (on his own behalf and on behalf of Moreno and Pelayo) to attorney Benjamin Rosenbaum of the law firm Lozano Smith, which served as general counsel for Parlier Unified School District. Lucero believed that Rosenbaum would take the necessary steps to ensure that a responsive pleading was filed on behalf of defendants. However, Attorney Rosenbaum failed to do so, and he mistakenly assumed that Lucero was going to tender the matter to Erik Knak, a claims handler, for assignment to other defense counsel. On December 17, 2015, the day the responsive pleading was due, Attorney Rosenbaum spoke with Knak, and Knak learned that Rosenbaum had not filed an answer. Knak then contacted attorney Leith B. Hansen to file a responsive pleading on behalf of defendants. According to Mr. Hansen's declaration, he did not realize that a responsive pleading was due that same day until it was too late. Hansen prepared and attempted to file an answer on the following day, December 18, 2015. The clerk of the superior court initially accepted the answer for filing, but later rejected it and returned it to Hansen's office unfiled because plaintiff had requested and obtained entry of default against defendants earlier in the day.

Motion to Set Aside Default

On January 19, 2016, defendants filed their motion to set aside default. In their motion, defendants argued that relief from default was mandatory under section 473, subdivision (b), because defendants had submitted declarations or affidavits of fault from attorneys Rosenbaum and Hansen. Alternatively, defendants asserted that they were entitled to discretionary relief under the same code section on the ground of mistake or excusable neglect on the part of defendants. On January 25, 2016, plaintiff filed his opposition to the motion. Plaintiff's opposition argued that mandatory relief was not available, and that discretionary relief should not be granted because the mistake or neglect was allegedly inexcusable.

The trial court granted the motion to set aside default under the mandatory provisions of section 473, subdivision (b), based on the attorney affidavits of fault filed by Attorneys Rosenbaum and Hansen. Thereafter, with the default set aside, defendants proceeded to file their answer on March 10, 2016.

Defendants' Anti-SLAPP Motion

On March 10, 2016, defendants also filed their motion to strike plaintiff's complaint pursuant to section 425.16, the anti-SLAPP statute. The motion argued that plaintiff's complaint, and the causes of action set forth therein, arose out of defendants' acts in furtherance of their right of free speech in connection with a public issue. Additionally, defendants' motion asserted that plaintiff could not establish a probability of prevailing on any of the causes of action set forth in the complaint, since (a) all causes of action were barred by the absolute privilege set forth in Civil Code section 47; (b) there was no outrageous conduct for purposes of an intentional infliction of emotional distress claim; (c) there...