The group presented the petition, addressed to the Davis school board, stating, “We the undersigned are parents, teachers and citizens of Davis who strongly support the current DJUSD self-contained GATE program.”
The petition states “We believe that there should be no significant changes to the (GATE) program without a demonstration that the current program is failing its students.”
According to an action filed on February 2 by local attorney Will Portello, who represents Shelley Dunning, “Using personal information of multiple Davis residents, all of whom were parents of elementary school children at a particular school in DJUSD,” unknown defendants set up false accounts not only for Ms. Dunning, but Jim Amato, Moira Acosta, David Thompson, and Meghan Zavod.
Using these fraudulent accounts, they accessed the petition and impersonated those individuals.
They then “proceeded to fabricate a spurious ‘Reason for Signing,’ attributing statements and positions to Shelley Dunning, and the other unknowing victims, regarding their support for the objectives of Davis Excel.”
Mr. Portello in his pleading argues, “In the case of Plaintiff Dunning, that ‘Reason for Signing,’ contained false, inflammatory, and denigrating statements concerning classroom practices of non-GATE teachers, a position she neither expressed, nor holds.”
Ms. Dunning’s fraudulent statement reads: “I have one child in the GATE program at NDE and then another not in the program at the same school. The difference between the depth and breadth of what the two are learning is incredible. My child not in the program is often bored and simply fills in the blanks of boring worksheets. My GATE child is challenged to go deeper, faster, and better. It is very sad to see that in such a highly educated community like Davis, we cannot come together to support such a fantastic educational program for our children.”
The petition was delivered to the Davis Joint Unified School District by Davis Excel. However, it has since been withdrawn after the Davis Enterprise reported in early March, “The already heated debate about the school district’s Gifted and Talented Education program took an ugly turn last week with the discovery that a pro-GATE petition on the website Change.org contained forged signatures and written testimonials falsely attributed to Davis parents.”
Mr. Portello argues, “While Davis Excel has subsequently retracted its petition, the fabricated support and statements were disseminated. The Plaintiff (and other parents who were impersonated on the petition) now have false and offensive statements attributed to them, and have been falsely portrayed as expressing support of a petition, an act they did not take. Plaintiff’s privacy, and the privacy of her family, has been invaded.”
School board members indicated to the Vanguard that this case indicates exactly why such petitions have little to no bearing on their policy decisions.
The Enterprise reports that on Thursday, Yolo Superior Court Judge Dan Maguire issued a subpoena which orders Change.org to turn over the IP (internet protocol) addresses of those who created the false signatures. Change.org had previously refused such a move, outside of a court order.
The website will have three weeks to produce the information. It remains unknown how much information this would yield. If an IP address can be obtained, Mr. Portello would then seek another subpoena for the ISP (internet service provider), to determine if they can identify the account holder.
Will Portello told the Vanguard on Friday that this case falls under a number of different legal aspects. Indeed, in his pleading, he writes, “This is not a garden-variety internet libel case, but rather a case of impersonation.”
He cites case law that holds, “One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
In this case he notes, “each element is satisfied,” arguing the “false statement is highly offensive to a reasonable person, and Doe Defendant had obvious knowledge, in fabricating the statement, that Dunning did not make it. Indeed, the very act of representing that an individual has signed a political document that she did not sing, is offensive. Shelley Dunning is not a public persona; consequently, there is no requirement that she prove actual malice in the fabrication.”
He further argues that this is a case of “misappropriation of identity,” where he alleges “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”
Furthermore, he argues that this is effectively identity theft under California PC 528.5, which states in part that “any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d)…”
Here he argues, “The Doe Defendants ‘credibly impersonated’ Shelley Dunning on the Change.org website, and did so through electronic means. The purpose of the impersonation was to convey to the individual members of the DJUSD Board that Shelley Dunning supported the Davis Excel petition, and thereby induce the DJUSD to rely on that communication in evaluating or taking certain actions related to GATE.”
The suit argues, “As a direct and proximate result of defendants’ wrongful conduct, Plaintiff suffered humiliation, anxiety and disturbance to her peace of mind, in that the petition ascribed views to her that she did not express, and publicly attributed to her an attack on the non-GATE teaching practices at North Davis Elementary School, a view she did not profess, and which is expressly rejected.”
Shelley Dunning is the wife of Davis Enterprise columnist Bob Dunning.
Mr. Dunning on March 5, wrote, “As crazy as that may sound, it was only the beginning of a weekend of frustration for one of those parents whose identity was stolen and who had false and hurtful comments attributed to her for all the world to see. That parent would be my wife, Shelley.”
He writes, “She and many others were violated, and the list of those defrauded continues to grow each day as more and more people find their names and their comments were manufactured out of thin air.
“We have four children in the same Davis elementary school. It is a superb elementary school with an excellent learning environment where all students, GATE and non-GATE alike, are cherished. We have one child in GATE, two not in GATE, and one too young to be considered for GATE.
“But what has always pleased us about this school is that all of our children – no matter how ‘gifted and talented’ some questionable test deems them to be – are challenged to excel, to be the best they can be. Each one of them is thriving in his or her respective environment.”
Despite Judge Maguire’s ruling from Thursday, this lawsuit is a long shot to go forward. The perpetrator of the fraud would have had to have done this from a computer that was identifiably linked to them.
—David M. Greenwald reporting