A recent Google search for "youth sports" showed 379,000,000 results. "Safety in youth sports," 66,800,000. "Problem parents in youth sports," 21,600,000. And "problem coaches in youth sports," 108,000,000. Subjects of tremendous interest.
Plaintiff Lawrence Hecimovich, by profession an attorney, was in the 2008-2009 school year the volunteer basketball coach of a fourth grade basketball team in the afterschool program in Menlo Park. A discipline problem arose with one of the players on his team, and plaintiff's attempts to resolve the issue with the boy's parents only exacerbated the situation, to the point, plaintiff claimed, that the parents were "rallying team parents to remove" him. Plaintiff then involved the volunteer league commissioner, who involved other league officials. This led to an extensive review of the matter—and numerous e-mails—the upshot of which was that plaintiff was told he would not be allowed to coach the following year and a suggestion that, when he return, it be to coach older children. Plaintiff's response was this lawsuit.
We begin with a general description of what plaintiff's lawsuit is about, as alleged in the "Summary of Claims" in paragraph 6 of his verified complaint: "6. Hecimovich was the volunteer basketball coach for an Encinal School fourth grade team in the City of Menlo Park Community Services AfterSchool Basketball Program during the 2008-2009 school year. Throughout the early part of the year, a player on the team engaged in behavior that went beyond disruption to posing a serious risk to his own safety and the safety of other players. That conduct included but was not limited to kicking and throwing basketballs at the gym lights, clock and fire alarm in an effort to break them; throwing or kicking balls at other players or other players' basketballs to disrupt their shooting or dribbling; and disappearing without notice during practices, including the final incident lasting half an hour. Hecimovich brought these issues to the attention of the player's parents numerous times and was at first ignored, then met with extreme anger and hostility, allegations that Hecimovich was discriminating against the player, and the threat that the parent had rallied and would continue to rally team parents to remove Hecimovich. When Hecimovich informed Encinal Basketball Coordinator Julie Roth of these developments, Roth refused to allow Hecimovich to take any action to address the situation, despite the fact that it clearly would not improve, lacking parent support. Roth ... insisted, contrary to written policy, that a coach could not reduce a p[l]ayer's minutes due to misconduct. When Hecimovich informed Roth that the risk to player safety,
As will be seen, defendants take issue with certain of the specific accusations in plaintiff's summary, and also with the description of what was ultimately said to plaintiff. But defendants take no issue with the background that generated the communications and the dispute here: the conduct of a kid on a fourth grade basketball team, his parents' and his coach's reactions to it, and the ultimate resolution of the situation.
On August 27, 2010, representing himself, plaintiff filed a verified complaint for damages, including punitive damages. It named four defendants, identified by plaintiff as follows: Encinal School Parent Teacher Organization (PTO), a nonprofit organization; Kelly Perri, PTO president during the 2009-2010 school year; Julie Roth, PTO basketball commissioner during the 2008-2009 school year; and Leslie Burke, basketball commissioner during the 2009-2010 school year and currently (when referred to collectively, defendants). The complaint alleged eight causes of action, each against all defendants, styled by plaintiff as follows: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) retaliation in violation of public policy; (4) libel and slander; (5) negligence; (6) fraud; (7) intentional infliction of emotional distress; and (8) negligent infliction of emotional distress.
The complaint was 20 pages long, with 88 paragraphs. The first five paragraphs identified the parties; paragraph 6 was plaintiff's summary of claims quoted above; paragraphs 7 through 45 were plaintiff's "factual allegations"; and the remaining paragraphs purported to allege the essential elements of the eight causes of action identified above. Significantly, all 39 "factual allegations" were incorporated into each of the eight causes of action, perhaps most significantly the final factual allegation, paragraph 45: "Hecimovich, who has coached soccer (along with basketball and baseball) each of the last five years and intended to coach throughout his sons' adolescence, has not coached again based on the defamation and other
Interestingly, at no point—not in paragraph 45, not in the cause of action for "libel and slander"—did plaintiff even attempt to allege what he claimed to be the defamatory communication(s).
On October 13, 2010, defendants filed a special motion to strike pursuant to Code of Civil Procedure section 425.16.
The motion was supported by declarations of the three individual defendants, Perri, Roth, and Burke, each of whom testified to their involvement with plaintiff and/or the brouhaha that ensued. As developed in more detail below, this testimony included problems with plaintiff and his coaching style; the welfare of the young players; and what Perri, for example, described as her conclusion: "[B]ased on my responsibilities and authority as president of the Encinal School Parent Teacher Organization, ... it would be prudent and appropriate to advise Coach Hecimovich that he would not be able to coach in the program for at least one year. I simply did not believe that Coach Hecimovich [sic] coaching style, based on my investigation, was appropriate for young grammar school children. I so advised Coach Hecimovich and indicated that after one year, I would consider allowing him to, once again, coach in the program." The three declarations also testified that all communications in which the declarants participated regarding plaintiff and his coaching were made without malice and to "interested persons."
On November 1, 2010, plaintiff filed his opposition to the motion, consisting of a 14-page memorandum of points and authorities and his 16-paragraph declaration. He filed no declarations from any third persons. Plaintiff's declaration had attached nine exhibits which, according to him, were copies
On November 9, 2010, defendants filed their reply. Along with it, they filed objections to plaintiff's declaration, objecting to portions of his declaration identified by page and line, generally on the grounds of hearsay and lack of foundation.
Defendants had also filed a demurrer, which was scheduled to be heard on November 29, the same day as the motion.
The court had issued a tentative ruling on the motion, apparently denying it.
Brief argument followed, with counsel for defendants citing authority for their position, after which the court turned to plaintiff to see what he "has to say here." After addressing the primary case relied on by defendants, plaintiff went on as follows:
"Secondly, the notion that anything somehow involves children or somehow involves a school raises an issue of free speech on a matter of critical public importance that would completely open up every case to a SLAPP motion. There would no longer be any lawsuits involving education or children or government or anything else in that whole domain.
"Certainly, that is not the law and I think in the opposition I have cited a host of cases that it's defendants' burden of showing that the gravamen of my claims which are, I think your Honor's comment about it being sounding [in]
"What is at issue here is a very internal policy matter. There is a written policy that says that a coach could discipline children who engage in misconduct. The commissioner, upon being told a coach wants to discipline a child [who] is engaged in misconduct like limiting playing time, says, `No, that is not the policy. That policy doesn't apply to us.'"
Counsel for defendants responded, principally focusing on the communications, all made in the context of decisions that "impacted a number of children and their parents." Plaintiff briefly responded, observing that if the court were to look, for example, at Roth's declaration, "this entirely relates to a complaint raised by the coach, that being me, about a need to implement discipline based upon student misconduct and Ms. Roth disagreed with that approach."
The court then said it was prepared to rule, and went on as follows: "My view on it really doesn't rest so much on [the extent of the communications] and I am aware of this, of the language in the statute that talks about activity that is done in connection with a matter of public interest, but if what you say is true then would it mean that we could never have a defamation lawsuit against a public figure in California and the standards of New York Times v. Sullivan being invoked and the problem I have with the ... motion is that it's clear that the complaint sets out alleged defamation of character. And even if that is activity that is connected with freedom of speech, that kind of speech has never been protected by the First Amendment. And so, and that has been the case since at least the 1920's. The United States Supreme Court has held to that view. The California Supreme Court is held to that view and it seems to me that given what the claim here actually is, leaving aside some of the problems with the pleadings that I have noted. If you look at the essence of the claim, it's that there were false statements being publicly made that were published and this is a remedy, this special motion to strike is a remedy that was designed and is intended to protect protected speech not unprotected speech."
Counsel for defendants disagreed, to no avail, and the remainder of the brief hearing dealt with the court's oral rulings on defendants' objections to evidence, which apparently were all "overruled" in the tentative ruling, but with no grounds given.
At the conclusion of the hearing, the court confirmed the basis of its ruling: "Because the basis of the claim is purported defamation that it's not a claim
On January 7, 2011, the court filed its two-page order, the substance of which provided in its entirety as follows:
"1. The Motion to Strike by Defendants pursuant to C.C.P. § 425.16 is denied. The Court finds that Defendants failed to meet their burden of showing that Plaintiff [sic] claims arises [sic] from Defendants' exercise of free speech or petition rights as defined by C.C.P. § 425.16. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61 [124 Cal.Rptr.2d 507, 52 P.3d 685].) A fair reading of the Complaint is that the gravamen of Plaintiff's claim is a purported defamation of character, something that, if true, is not protected by the First Amendment,
"2. The Defendants [sic] objections to the Declaration of Lawrence Hecimovich are overruled. Specific grounds for the Court overruling these objections was [sic] set forth, on the record, during the hearing on the subject motion.
"3. Plaintiff's request for judicial notice of certain documents is denied."
On January 7, 2011, defendants filed their notice of appeal.
As indicated above, defendants had also filed a demurrer. As to it, the court sustained the demurrer to all eight causes of action in the complaint, without leave to amend as to the third cause of action, and with leave to amend as to the other seven.
On December 8, 2010, and before defendants filed their notice of appeal, plaintiff filed his verified first amended complaint for damages.
In his brief to us, plaintiff chastises defendants for "improperly omit[ting] from the record plaintiff's first amended complaint filed December 8, 2010, one month before the appeal." And on July 6, 2011, plaintiff filed a motion to augment the record on appeal, to include (1) the first amended complaint and (2) a copy of a January 2011 article from an online newspaper, The Almanac
On September 9, 2011, plaintiff filed what he called a "Supplemental Memorandum and Post-Motion Evidence in Support of His Motion to Augment the Record." This sought to augment the record to "reflect [plaintiff's] efforts to obtain discovery" concerning the "authorship of the defamatory January 2011 online articles," which discovery was disallowed by the trial court.
We now deny the motion to augment.
The reason plaintiff sought to add the first amended complaint was, in his words, for "the sole purpose of adjudicating the second prong of the anti-SLAPP test—assessing [plaintiff's] likelihood of success on the merits. [Plaintiff] cited to Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870-871 [90 Cal.Rptr.3d 205]. Nguyen-Lam is directly on point." Nguyen-Lam is not on point. Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604 [129 Cal.Rptr.2d 546] is.
As to the January 2011 online newspaper article and the numerous comments that followed it—all published after the appeal was filed—they have nothing to do with the two issues involved in the SLAPP analysis.
Subdivision (b)(1) of section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Subdivision (e) of section 425.16 elaborates the four types of acts within the ambit of a SLAPP, including, as pertinent here, "(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."
Finally, and as subdivision (a) of section 425.16 expressly mandates, the section "shall be construed broadly."
As noted, the first step in the SLAPP analysis is to determine whether the lawsuit is within one of the four descriptions of protected activity in subdivision (e) of section 425.16. The trial court held it was not, because it sounded in defamation which, the court held, is not—and apparently can never be—protected activity. Such holding was wrong.
As another Court of Appeal observed, "`defamation suits are a prime target of SLAPP motions. [¶] ... The Legislature did not intend that in order to invoke the special motion to strike the defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law. If this were the case then the inquiry as to whether the plaintiff has established a probability of success would be superfluous.'" (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 419-420 [9 Cal.Rptr.3d 242], quoting Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305 [106 Cal.Rptr.2d 906].) In short, the basis on which the trial court denied the motion was wrong.
But that does not end the inquiry, as we must determine on our de novo review whether plaintiff's lawsuit involves an "issue of public interest."
Applying those principles here leads easily to the conclusion that the communications and conduct about which plaintiff complains were in connection with an issue of public interest.
We begin with the "factual allegations" in plaintiff's complaint, the first of which refers to Roth, and her involvement with plaintiff in connection with a problem he had with his young player and the player's parents. These allegations confirm that the issue included the parents telling Roth that in their opinion plaintiff posed a danger to their child's physical safety. In fact, plaintiff himself stated that he "could not coach a player whose parents considered [plaintiff] unsafe."
The next factual assertions, those concerning Burke, involve statements attributed to her in her capacity as the PTO basketball commissioner, all concerning plaintiff's problems with the player and his parents. These include a recitation of alleged conversations between Burke and plaintiff's assistant coach Picciotto, a communication from Burke to Perri to the effect that plaintiff was "bullying two moms," and the decision to "remove" him as a coach.
The next allegations are about Perri, again of conduct and statements attributed to her in an official capacity as PTO president. And these allegations conclude with the statement, "Perri determined that Hecimovich was unfit to coach and informed Hecimovich's team parents of that conclusion." In short, plaintiff's own complaint concedes that the communications in issue
As noted above, the declarations of individual defendants Roth, Perri, and Burke confirm in great detail that the issue with the player and plaintiff's fitness to coach young players was the basis of the dispute. And plaintiff's own declaration makes the point graphically, with 15 of his 16 paragraphs describing the dispute in detail. These paragraphs include plaintiff's sworn testimony that the player's parents were alleging that plaintiff was "discriminating against the players"; that assistant coach Picciotto had been told by Burke that a player's father had "filed a formal written complaint insisting that [plaintiff] not be allowed to coach again, and that Roth had reported that [plaintiff] had used improper disciplinary tactics against the player"; and that Perri contacted parents of the players to "inform them that the PTO had banned [plaintiff] from coaching (head or assistant coach) due to what was considered unacceptable conduct coaching their sons."
This is an issue of public interest.
Defendants relied below, and rely here, on Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 [33 Cal.Rptr.3d 145] (Terry), where the essence of plaintiffs' complaint was that they were falsely accused of having an inappropriate sexual relationship with a minor female in their work as church youth group leaders. (Id. at p. 1538.) The evidence showed that parents had complained about the plaintiffs' dealings with the minor, which prompted a church investigation, the result of which was a confidential report of the church describing an inappropriate relationship with the minor. (Id. at pp. 1539-1542.) The report was then discussed among interested church members, first in a February 19, 2004 closed meeting of church officials and then at "two meetings on February 22, 2004, with parents of youth group members. The Church had received many inquiries from parents and concluded they had a right to know about the investigation. Defendants distributed copies of the report at the meetings and took care to collect all copies as the meetings ended. About 100 people saw the report." (Id. at p. 1543.)
The plaintiffs sued the church, the pastor, and church leaders for libel, slander, and intentional and negligent infliction of emotional distress, and sought injunctive relief after the distribution of the report at the meetings. The defendants responded with a SLAPP motion, which the trial court granted. The Court of Appeal affirmed, finding that "the communications clearly involved issues of public interest, because they involved the societal interest in protecting a substantial number of children from predators ...." (Terry, supra, 131 Cal.App.4th at pp. 1538-1539, 1547.) Doing so, the court
And the court went on: "Here, the broad topic of the report and the meetings was the protection of children in church youth programs, which is an issue of public interest. This is not to say that George Terry in fact molested the girl. Rather, George Terry's actions in engaging in a secretive and inappropriate relationship with the girl gave the Church and parents of youth group members cause for concern and opened for discussion the topics of whether other children were affected and how to prevent such inappropriate relationships." (Terry, supra, 131 Cal.App.4th at p. 1548.)
Plaintiff says nothing in any attempt to distinguish the holding or reasoning of Terry, contenting himself with criticism of defendants for their reliance on the case and taking umbrage at being equated with a child molester.
Indeed, it would appear that plaintiff essentially agrees that the suitability of his coaching style was a matter of public interest among the parents. As plaintiff testified, he himself urged the team parents to join in an investigation of his suitability to coach the young players because it involved "the well being of our kids." In his words: "Please, if you would, take the time to answer [Perri's] questions fully and truthfully, and don't hold anything back on the grounds that it might be hurtful to me. I think that if the PTO wants to
As noted, plaintiff has requested that we augment the record to include, among other things, a January 2011 article in The Almanac Online about the lawsuit and numerous followup comments about it. While we decline the request to augment, we do note that the scope and breadth of the comments, not to mention the article itself, show just how much the public was interested in the issue.
The second step in the SLAPP analysis is to determine whether plaintiff has shown a probability of prevailing on the claim. Here, because the trial court found, however erroneously, that plaintiff's lawsuit was not within the SLAPP statute, it did not reach step 2. Nevertheless, we can decide the issue (see Roberts, supra, 105 Cal.App.4th at pp. 615-616) and, in fact, plaintiff "asks [us] to address the likelihood of success on the merits prong on the anti-SLAPP test." We thus decide step 2. And conclude that plaintiff has failed to meet his burden.
While plaintiff's burden may not be "high," he must demonstrate that his claim is legally sufficient. (Navellier, supra, 29 Cal.4th at p. 93.) And he must show that it is supported by a sufficient prima facie showing, one made with "competent and admissible evidence." (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236 [132 Cal.Rptr.2d 57]; see Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497 [45 Cal.Rptr.2d 624].) Plaintiff's demonstration does not measure up.
As noted, the trial court thought the "gravamen" of plaintiff's lawsuit was defamation. Plaintiff seemingly did not disagree below, as reflected in his argument, where he apparently adopted the court's analysis. Here, by contrast, plaintiff vigorously disagrees, and asserts that defendants' claim that defamation is the gravamen of his suit is "manifestly false, rendering their failure to address [plaintiff's] other causes of action fatal to their appeal." And, plaintiff goes on, "[T]he Complaint makes clear that [plaintiff's] principal grievance relates to the baseless decision to bar him from the Encinal and Hillview programs based on the erroneous insistence that [plaintiff] had improperly benched a player. In fact, [plaintiff] repeatedly offered to forgive the loss of a season coaching his sons' teams, withdraw his grievances and forego legal action—first, not to file the complaint, then, not to serve it, then, to dismiss the complaint and forego damages—if [defendants] simply allowed him to return to coaching in year two, then, in year three. [Defendants] rejected those overtures...." Two brief paragraphs follow, the second of which says this: "To pretend that the Complaint can be reduced to a single theory of injury, and that the gravamen of [plaintiff's] claims sounds in defamation, is a mere fiction. The court below accepted that characterization so as to expeditiously deny the motion, since the defamation allegations clearly fall outside the SLAPP statute. However, had [defendants] not failed miserably in their attempt to strike the defamation allegations, they would have had to address the remaining claims."
As quoted above, paragraph 45 of plaintiff's complaint, incorporated by reference into all other causes of action, states: "Hecimovich, who has coached soccer (along with basketball and baseball) each of the last five years and intended to coach throughout his sons' adolescence, has not coached again based on the defamation and other unlawful conduct he experienced from defendants, and will not be able to coach until defendants acknowledge their deceit and clear his reputation."
We begin by noting that we are at a loss to discern just what defamatory communication(s) plaintiff is complaining about. At no point in his briefing does he specifically identify any particular writing or utterance; and as will be seen, he has provided no evidence demonstrating a prima facie case of defamation—indeed, he did not even plead one. (See fn. 1, ante.)
Plaintiff's entire pleading of the alleged "libel and slander" is this: "PTO, Roth, Burke and Perri have knowingly made false statements, separate and
Plaintiff's declaration is no better. The word "defame" or "defamation" is not even mentioned. And the only reference to any claimed "falsity" is this: "12. During our meeting Perri conceded that she was aware of no facts that would support Burke's claim that Hecimovich had attempted to institute disciplinary tactics against the child that were punitive and against the league's rules and philosophy, or that he had precluded a parent from enjoying continued participation in the basketball experience. Picciotto has confirmed that Burke's reasons were false. Perri later confirmed he [sic] conclusion that Roth and Burke's reasons for banning Hecimovich were false. True and correct copies of Perri's November 18, 21 and 23, 2009 emails are attached as Exhibit C."
Plaintiff did allege, however conclusorily, that the PTO and the women volunteers asserted to team parents that he is "unfit to coach." However, he is not a professional coach, but a lawyer who volunteered to coach children. The statement does not have a tendency to injure plaintiff in his profession nor expose him "to hatred, contempt, ridicule, or obloquy," or cause him to be "shunned or avoided."
Plaintiff also alleged, also conclusorily, that the women volunteers defamed him by attributing to him "immoral qualities including a disregard for the safety of children that by natural consequence would and have in fact injured [plaintiff's] reputation in the community and his ability to engage in the avocation of his choice." While such a statement might be defamatory, plaintiff has produced no evidence of any defendant attributing to plaintiff "immoral qualities including a disregard for the safety of children."
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): a "privileged publication. . . is one made . . . [¶] . . . [¶] (c) [i]n a communication, without malice,
As noted above, all three defendants testified that all communications by them were to "interested persons" who either requested the information or were entitled to it. These included school officials, PTO members responsible for the boys' basketball program, the assistant coach, parents of the child player, and league parents. Plaintiff provided no contrary evidence.
All plaintiff says in response to defendants' privilege argument is this: "[Defendants] cannot possibly establish that their admittedly false statements and dishonest actions were undertaken in good faith and without malice. See, e.g., Rancho La Costa Inc. v. Superior Court (1980) 106 Cal.App.3d 646 [165 Cal.Rptr. 347], cert. denied 450 U.S. 902 [67 L.Ed.2d 326, 101 S.Ct. 1336] (assertion that conditional privilege was apparent from complaint with bare bones evidentiary submission amounts to claim of carte blanch [sic] application, precise contrary of what section 47(c) allows)." From there plaintiff goes on with three brief ipse dixit arguments that "Roth's story," "Burke's story," and "Perri's story" are "inherently self-contradictory and make[] no sense." That is it. It is insufficient.
As noted, plaintiff now disagrees as to the gravamen of his lawsuit, and argues that defendants must also address the other claims as well. As also noted, we have received supplemental briefing about these claims, and will address them, following a few preliminary observations.
Second, plaintiff's understanding of the SLAPP law is erroneous, especially his bold statement that "breaching a contract is never a protected exercise of free speech or right of petition and hence cannot constitute a protected activity for anti-SLAPP purposes," citing Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1117 [79 Cal.Rptr.3d 849]. That case says no such thing. And well-settled law is contrary.
That contract claims can be within the SLAPP procedure is also illustrated by Nygård, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th 1027. There, an employer sued its former employee (and a magazine) for statements made by the former employee in an interview, alleging five causes of action: breach of contract, breach of the implied covenant of good faith and fair dealing, interference, breach of the duty of loyalty, and defamation. (Id. at p. 1033.) The trial court struck the entire complaint under the SLAPP statute. The Court of Appeal affirmed, holding that the interview was a protected activity because magazines are public for a within the meaning of Code of
With that by way of background, and the trial court having sustained the demurrer to the third cause of action without leave to amend, we turn to an analysis of the remaining six causes of action, an analysis we make mindful that plaintiff's burden requires him to demonstrate that the claim is "`legally sufficient.'" (Navellier, supra, 29 Cal.4th at p. 93.) And conclude that plaintiff has not demonstrated a likelihood of prevailing on any of them.
The first cause of action is for breach of contract. It contains two paragraphs, as follows:
"47. Encinal basketball coaches are allowed to continue coaching in the absence of good cause for dismissal. Hecimovich is not aware of any basketball coach not being allowed to continue to coach, despite various violations of Encinal rules and policies. Hecimovich's proposal to reduce a player's playing time due to misconduct conformed with Encinal policy, as well as League policy. When Roth insisted, equivocally, that the policy Hecimovich relied on either did not apply to Encinal, did not apply to his team, or meant the opposite of what it says, Hecimovich deferred to her decision. The player was never disciplined in any respect, and Hecimovich did not violate any Encinal or League policy.
Passing over whether a volunteer coach of a fourth grade basketball team in an afterschool league can have an enforceable contract, plaintiff's claim fails, for several reasons. Plaintiff has produced no evidence demonstrating the formation of any contract—no evidence of offer, acceptance, or consideration, no evidence from which the terms of any contract could be determined. Beyond that, he has pleaded no damages compensable in contract (see generally 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 869 et seq., p. 956 et seq.), and has provided no evidence of any damages to him. (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [90 Cal.Rptr.3d 133].)
The fifth cause of action, for negligence, alleges in pertinent parts as follows:
"66. Hecimovich's complaints to Roth involved Encinal student safety in a District and Encinal-sponsored activity conducted on Encinal school property. Defendants have a heightened standard of care with regard to providing safe premises and maintaining policies sufficient to ensure student safety. [¶] . . . [¶]
"68. Burke's decision to bar Hecimovich from coaching based on Roth's reports, and her failure to discover the inaccuracy and inadequacy of those reports, was similarly negligent in that Burke had a duty to address student safety issues in her capacity as PTO basketball coordinator.
"69. Perri's decision to bar Hecimovich from coaching based on Roth's and Burke's reports, and her failure to discover the inaccuracy and inadequacy of those reports, was similarly negligent in that Perri had a duty to address student safety issues in her capacity as PTO President.
"70. As a result of defendants' actions as set forth above, Hecimovich has suffered general and special damages according to proof...."
The sixth cause of action is for fraud. It alleges as follows:
"72. Roth, Burke and Perri dissuaded Hecimovich from taking legal action regarding their decision to ban him from coaching during the 2009-2010 season by representing that they would fairly review that decision and would fairly consider him for future seasons. Perri represented that an impartial investigation was required and that she would conduct such an investigation. After convincing Hecimovich to refrain from challenging the PTO's actions, Perri never conducted such an investigation. Hecimovich is informed and believes that Perri never intended to do so.
"73. As a result of defendants' actions as set forth above, Hecimovich has suffered general and special damages according to proof. Hecimovich has also suffered and continues to suffer damages to his reputation, according to proof. Hecimovich is also entitled to recover his reasonable attorneys' fees in bringing this matter to trial."
The order denying the SLAPP motion is reversed, and the matter remanded with instructions to (1) enter an order granting the motion and (2) hold a hearing, following further briefing, to award defendants the attorney fees to which they are entitled under section 425.16.
Kline, P. J., and Haerle, J., concurred.
Civil Code section 46 provides: "Slander is a false and unprivileged publication, orally uttered ... which:
"1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
"2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
"3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
"4. Imputes to him impotence or a want of chastity; or
"5. Which, by natural consequence, causes actual damage."
