NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEBBY DAY, et al., No. 22-55825

Plaintiffs-Appellees, D.C. No. 8:21-cv-01286-JLS-DFM v.

CALIFORNIA LUTHERAN UNIVERSITY; MEMORANDUM*

et al.,

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Argued and Submitted July 14, 2023 Pasadena, California

Before: SANCHEZ and MENDOZA, Circuit Judges, and JACKSON,** District Judge.

In January 2020, a group of students from the California Lutheran

University (“CLU”) women’s softball team performed a lip-sync routine to the

theme song from The Fresh Prince of Bel-Air, allegedly wearing “hip-hop

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Brian A. Jackson, United States District Judge for the Middle District of Louisiana, sitting by designation. clothing,” dark makeup to portray facial hair, and curly wigs. After the team

posted the performance on social media, CLU’s leadership received a complaint

that the performance was “blackface.” In the following weeks, CLU’s leadership

addressed the performance in emails to the CLU students, campus-wide

community forums, and a meeting with the softball team and their parents. These

communications characterized the performance as a “racist incident,” remarked

that “blackface” “evoke[s] white supremacy” and “anti‑blackness,” and expressed

the view that “students were recorded doing performances in which there were

exaggerated characterizations of black people and culture” and that “[m]any

viewers in [the] campus community took offense and identified” the images as

“blackface.” Plaintiffs sued CLU and certain officers for defamation, false light,

and other state law claims arising from these assertedly false statements.

Defendants appeal the district court’s order denying their motion to dismiss

and special motion to strike plaintiffs’ defamation and false light claims and Coach

Debby Day’s unfair competition law (“UCL”) claim pursuant to California’s

Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute. We review

the district court’s order denying Defendants’ anti-SLAPP motion de novo.1

1 We deny plaintiffs’ motion for judicial notice, Dkt. No. 16, because they do not demonstrate any “extraordinary” circumstance to warrant supplementing the record on appeal. Kohn L. Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1241 (9th Cir. 2015).

2 Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). We reverse.

1. The district court correctly determined that “Defendants have

sufficiently made a prima facie showing that the activities at issue are protected

conduct” under the anti-SLAPP statute. See CoreCivic, Inc. v. Candide Grp., LLC,

46 F.4th 1136, 1140 (9th Cir. 2022). Protected conduct includes “conduct in

furtherance of the exercise of . . . the constitutional right of free speech in

connection with a public issue or an issue of public interest.” Cal. Civ. Proc. Code

§ 425.16(e)(4). Defendants’ statements were made in connection with an incident

that sparked campus-wide discussions about racism and racial justice, matters

involving significant public interest.2

2. The district court erred in concluding that plaintiffs stated a legally

sufficient claim for defamation under Federal Rule of Civil Procedure 12(b)(6).

Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828,

834 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir. 2018). A claim for

defamation is not actionable when it involves a privileged publication, Taus v.

Loftus, 40 Cal. 4th 683, 720 (2007), and defendants contend that the allegedly

defamatory statements are privileged under the common-interest privilege. See

Cal. Civ. Code § 47(c)(1) (a privileged publication is one made “[i]n a

2 Defendants’ statements are not prohibited under the Family Educational Rights and Privacy Act because they do not disclose any student’s personally identifiable information or records. See 20 U.S.C. § 1232g; 4 C.F.R. § 99.3.

3 communication, without malice, to a person interested therein, by one who is also

interested”). The privilege applies “where the communicator and the recipient

have a common interest and the communication is of a kind reasonably calculated

to protect or further that interest.” Cornell v. Berkeley Tennis Club, 18 Cal. App.

5th 908, 949 (2017) (internal quotation marks omitted) (quoting Hawran v. Hixson,

209 Cal. App. 4th 256, 287 (2012)).

The common-interest privilege applies here because the statements by

CLU’s leadership were made to the campus community, who share an interest in

addressing matters of racism and racial justice as it pertains to student groups and

campus activities. See, e.g., Taus, 40 Cal. 4th at 721 (holding that the

common-interest privilege applied to a psychology professor’s statement at a

conference attended by other mental health professionals). Plaintiffs’ assertion that

defendants “call[ed] attention” to the performance in various news outlets does not

defeat the privilege. California courts have recognized that the privilege can apply

even when challenged statements are later disseminated to the news media. See,

e.g., Brewer v. Second Baptist Church of Los Angeles, 32 Cal. 2d 791, 796–97

(1948); Institute of Athletic Motivation v. Univ. of Illinois, 114 Cal. App. 3d 1,

12–14 (1980). Plaintiffs’ reliance on Hawran v. Hixson is unavailing because the

allegedly defamatory press release was disseminated “to the world at large,” far

beyond the scope of a potentially interested “investing public.” 209 Cal. App. 4th

4 256, 287 (2012). Here, in contrast, CLU’s statements were directed not to the

world at large but “mainly towards those involved” with the same “narrow private

interests,” the campus community. Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 738

(1989). In any event, unlike Hawran, plaintiffs here do not allege that any

statement made to a news outlet was itself defamatory.

3. Plaintiffs have not plausibly alleged actual malice by any defendant

sufficient to defeat the common-interest privilege, i.e., that the defendants were

“motivated by hatred or ill will” towards the plaintiffs or “lacked reasonable

ground for belief in the truth of the publication.” Taus, 40 Cal. 4th at 721. The

district court concluded in error that some of the statements “were offered in bad

faith and with some awareness that they were not truthful” because then-CLU

President Chris Kimball allegedly acknowledged in a meeting with the softball

team that he believed the students “did not intend to do anything racist,” even as he

later characterized the performance as “blackface.” This acknowledgement does

not establish that Kimball lacked reasonable grounds to believe in the truth of his

emailed statements. Kimball also stated in that meeting that “there is a distinction

between intent and impact” and others perceived the performance to be hurtful.

Kimball added that in his view, the performance was “blackface” given how the

group was dressed and differing definitions of the term. These statements to the

team are consistent with Kimball’s campus-wide email defending the use of the

5 term “blackface” to describe performances that involve “exaggerated

characterizations of black people and culture.” In short, plaintiffs have not

plausibly alleged any bad faith or knowledge of the falsity of the challenged

statements.

For the same reasons, plaintiffs fail to sufficiently plead their false light

claims, which are based on the same allegations as their defamation claims.

Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1264 (2017), as modified (Apr. 19,

2017).

4. A claim brought under the UCL “requires that a plaintiff have ‘lost

money or property’ to have standing to sue.” Kwikset Corp. v. Superior Ct., 51

Cal. 4th 310, 323 (2011) (quoting Peterson v. Cellco Partnership, 164 Cal. App.

4th 1583, 1590 (2008)). Coach Day has not alleged any concrete economic injury

arising from defendants’ allegedly unfair practices. Her allegation that she “lost

money” in the form of “compensation” is conclusory, and without more,

insufficient to establish standing to pursue her UCL claim.

REVERSED and REMANDED.

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