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Lawrence Hecimovich v. Encinal School Parent Teacher Organization et al

February 9, 2012


Trial Court: San Mateo County Superior Court Trial Judge: Honorable Gerald J. Buchwald Super. Ct. No. CIV498362)

The opinion of the court was delivered by: Richman, J.


(San Mateo County

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 2008-2009 the volunteer basketball coach of a fourth grade basketball team in the after school 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 emails--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.

Representing himself, plaintiff filed a complaint against four defendants, the parent teacher organization and three volunteers involved in running the after school program, a complaint that purported to allege eight causes of action. Defendants filed an anti-SLAPP motion, asserting that the lawsuit dealt with an issue of public interest and that plaintiff could not demonstrate a likelihood of prevailing on the merits. The trial court observed that the "gravamen" of plaintiff's complaint was defamation, and went on to hold that defamation cannot be protected activity within the anti-SLAPP analysis. The court thus denied the motion under the first step of the analysis, and did not reach step two.

Defendants appeal, and we review the matter de novo, concluding first that defamation can be protected activity and that plaintiff's lawsuit arose out of an issue of public interest. And we go on--at plaintiff's express invitation--to decide the second step, and hold that plaintiff has failed to demonstrate a likelihood of prevailing on the merits. We thus reverse, with instructions to enter an order granting the motion to strike, and to hold a hearing to determine the attorney fees to which defendants are entitled for their success in having the lawsuit stricken.


We begin with a general description of what plaintiff's lawsuit is about, as alleged in the "Summary of Claims" in paragraph six 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, the disruption to practices and the impact on team cohesiveness was unacceptable and would not be allowed under the rules of [American Youth Soccer Organization] or other youth organizations, Roth accused him of 'unnecessarily escalating the situation' and threatened various punishments, including removing him as a coach. The following year, Roth, together with her successor, Leslie Burke, and PTO President Kelly Perri, found Hecimovich unfit to coach and permanently barred Hecimovich from participating in the Encinal League."

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.


Plaintiff's Complaint

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 non-profit 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 unlawful conduct he experienced from defendants, and will not be able to coach until defendants acknowledge their deceit and clear his reputation."

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).*fn1

The Motion to Strike

On October 13, 2010, defendants filed a special motion to strike pursuant to Code of Civil Procedure section 425.16.*fn2 The motion argued that: (1) the conduct alleged in plaintiff's complaint was "in connection with a public issue or an issue of public interest," as it involved communications between a parent-teacher organization and parents concerning plaintiff's coaching of young children; and (2) plaintiff would not be able to show a likelihood of prevailing on the merits.

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, that 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 of the following: the basketball league policies Roth distributed to coaches; four emails from plaintiff, one to the parents of the young player involved, one to all team parents, one to Perri, and one to Burke; two emails from Burke, one to plaintiff and one to Perri; and a grouping of several emails from Perri, including one sent to all parents.

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.

The Demurrer

Defendants had also filed a demurrer, which was scheduled to be heard on November 29, the same day as the motion.

The Hearing on the Motion

The court had issued a tentative ruling on the motion, apparently denying it.*fn3 Defendants contested it, and the result was a relatively brief argument, which began with the court noting what its "thinking was here," which was this: "[Its] view was that there were some allegations that suggested that claim here has to do with some false statements that were made about . . . the plaintiff's performance and that that was why he wasn't able to coach anymore. [¶] . . . [¶] And so, even though it isn't pled as a defamation claim it, you know that's what the allegations sound in if I can use an old expression that we used to have."

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] defamation comprises an attack on specific efforts to engage in free speech not significant public issues. And that is the case of Wang v. Wal-Mart, 153 Cal.App.4th 790. Clearly that's not what is at issue here.

"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 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 as to which the special motion to strike applies because defamation by its definition is something that for years has been held not to be protected by the first amendment and in order for you to make a threshold showing you have got to show that there is a connection to some protected First Amendment activity and that showing isn't made here."

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.) 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 set forth, on the ...

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