Rall v. Tribune 365, LLC ( 2019 )

Filed 12/18/19; Opinion following transfer from Supreme Court
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
FREDERICK THEODORE B284566
RALL III,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC613703)
v.
TRIBUNE 365, LLC, et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County. Joseph R. Kalin, Judge. Affirmed.
Roger A. Lowenstein; Jeff Lewis Law, Jeffrey Lewis and
Sean C. Rotstan for Plaintiff and Appellant.
Davis Wright Tremaine, Kelli L. Sager, Rochelle Wilcox,
Dan Laidman, Diana Palacios; Jeff Glasser, Los Angeles Times
Communications LLC for Defendants and Respondents.
Jassy Vick Carolan, Jean-Paul Jassy; Nikki Moore and
David Snyder, for California News Publishers Association and
First Amendment Coalition as Amici Curiae on behalf of
Defendants and Respondents.
__________________________
SUMMARY
Plaintiff Frederick Theodore Rall III, a political cartoonist
and blogger, sued Los Angeles Times Communications LLC (The
Times) after it published a “note to readers” and a later more
detailed report questioning the accuracy of a blog post plaintiff
wrote for The Times. The Times told its readers that it had
serious questions about the accuracy of the blog post; that the
piece should not have been published; and that plaintiff’s future
work would not appear in The Times. Plaintiff sued The Times,
related entities, and several individual defendants, alleging
causes of action for defamation and for wrongful termination in
violation of public policy, among other claims.
All defendants filed anti-SLAPP (strategic lawsuit against
public participation) motions to strike plaintiff’s complaint (Code
Civ. Proc., § 425.16). The trial court granted the motions. In our
original published opinion filed January 17, 2019, we affirmed
the trial court’s orders. Plaintiff filed a petition for review with
the Supreme Court. The Supreme Court granted review and
deferred further consideration pending its disposition in Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871 (Wilson).
After the issuance of its decision in Wilson, the Supreme
Court, by order dated September 25, 2019, transferred the matter
to this court for reconsideration in light of Wilson. Having done
so, we again affirm the trial court’s orders.
FACTS
We summarize the facts, and then describe the moving and
opposition papers. We will elaborate on the facts as necessary in
our discussion of the legal issues.
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1. The Plaintiff and the Publications
Plaintiff is a freelance editorial cartoonist who lives in New
York, and is “one of the most widely syndicated cartoonists in the
United States.” He is the author of 19 books, including a New
York Times bestselling comics biography. Between 2009 and
2015, his cartoons were drawn exclusively for The Times, but
after his work was published in The Times, he was free to publish
it elsewhere. Beginning in 2013, plaintiff also wrote blog posts
for publication in conjunction with his cartoons. Plaintiff drew
about 300 cartoons and wrote about 150 blog posts for the Times.
As of 2013, he was paid $200 for each cartoon and $100 for each
blog post. He drew numerous cartoons criticizing the police in
general, the Los Angeles Police Department (LAPD) in
particular, and then-LAPD Chief Charles Beck specifically.
a. Plaintiff’s May 2015 blog post
In May 2015, the LAPD was enforcing the city’s laws
against jaywalking, and The Times reported on the effects of
costly jaywalking fines on poor and working class Angelenos.
After that report, plaintiff submitted and The Times published a
cartoon mocking the LAPD for its jaywalking policy (“LAPD’s
Crosswalk Crackdown; Don’t Police Have Something Better to
Do?”), along with a May 11, 2015 blog post that described
plaintiff’s own arrest for jaywalking in 2001.
In the blog post, plaintiff wrote that he had crossed the
street properly (“I was innocent of even jaywalking”) when a
motorcycle officer “zoomed over, threw me up against the wall,
slapped on the cuffs, roughed me up and wrote me a ticket. It
was an ugly scene, and in broad daylight it must have looked like
one, because within minutes there were a couple of dozen
passersby shouting at the cop. [¶] Another motorcycle officer
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appeared, asked the colleague what the heck he was thinking and
ordered him to let me go, which he did. But not before he threw
my driver’s license into the sewer.” Plaintiff’s blog also stated he
had filed a formal complaint with the LAPD, and when he called
a few months later, he was told the complaint had been
dismissed, and “[t]hey had never notified me.”
b. The Times’s July 2015 “note to readers”
On July 28, 2015, The Times published, in its opinion
section, an “Editor’s Note[:] A note to readers.” The note to
readers described plaintiff’s May 11, 2015 blog post, and then
described records that the LAPD provided to The Times about the
incident plaintiff had recounted in his blog post. These included
the complaint plaintiff filed at the time, and “[a]n audiotape of
the encounter recorded by the police officer.”
The note to readers stated the audiotape “does not back up
[plaintiff’s] assertions; it gives no indication that there was
physical violence of any sort by the policeman or that [plaintiff’s]
license was thrown into the sewer or that he was handcuffed.
Nor is there any evidence on the recording of a crowd of shouting
onlookers.” The note to readers continued:
“In [plaintiff’s] initial complaint to the LAPD, he describes
the incident without mentioning any physical violence or
handcuffing but says that the police officer was ‘belligerent and
hostile’ and that he threw [plaintiff’s] license into the ‘gutter.’
The tape depicts a polite interaction. [¶] In addition, [plaintiff]
wrote in his blog post that the LAPD dismissed his complaint
without ever contacting him. Department records show that
internal affairs investigators made repeated attempts to contact
[plaintiff], without success. [¶] Asked to explain these
inconsistencies, [plaintiff] said he stands by his blog post. [¶] As
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to why he didn’t mention any physical abuse in his letter to the
LAPD in 2001, [plaintiff] said he didn’t want to make an enemy
of the department, in part because he hosted a local radio talk
show at the time. After listening to the tape, [plaintiff] noted
that it was of poor quality and contained inaudible segments.”
The note to readers concluded: “However, the recording
and other evidence provided by the LAPD raise serious questions
about the accuracy of [plaintiff’s] blog post. Based on this, the
piece should not have been published. [¶] [Plaintiff’s] future
work will not appear in The Times. [¶] The Los Angeles Times is
a trusted source of news because of the quality and integrity of
the work its journalists do. This is a reminder of the need to
remain vigilant about what we publish.”
c. The Times’s August 2015 report reaffirming
its decision that plaintiff’s blog post did not
meet its standards
On August 19, 2015, in response to questions from readers,
The Times published a piece that provided “a detailed look at the
matter by Times editors” (the Times report). After describing the
blog post and its note to readers, the Times report stated that
plaintiff had “complained that The Times acted unjustly, based
on flawed evidence,” and “demanded that the paper retract its
note to readers and reinstate him as a contributor. [¶] In
response, The Times has reexamined the evidence and found no
basis to change its decision.”
The Times report recounted the evidence The Times
examined, and makes these principal points.
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i. Plaintiff’s complaint to the LAPD and
his later descriptions of the incident
Plaintiff’s original complaint to the LAPD, “written days
after the jaywalking stop, when the encounter was fresh in his
mind,” “accused the officer of rudeness but not of any physical
abuse.”1 “In published accounts years later, [plaintiff] added
allegations that the officer handcuffed and manhandled him, that
a crowd of two dozen onlookers shouted in protest at the
mistreatment and that a second officer arrived and ordered his
colleague to let [plaintiff] go.”2
1 The Times report provided further details of plaintiff’s
letter of complaint to the LAPD. Plaintiff stated he had not
jaywalked, the officer (Willie Durr) became “ ‘belligerent and
hostile’ when [plaintiff] asked him how to deal with the citation,”
Officer Durr “refused to answer when asked if the ticket could be
paid by mail and then threw [plaintiff’s] driver’s license into the
gutter.” Plaintiff asked the LAPD “to consider dismissing Durr,
whom he described as ‘an ill-tempered excuse for a police officer’ ”
who “exhibited ‘vile rudeness.’ ” Plaintiff “compared the officer
unfavorably to Taliban fighters who [plaintiff] said had detained
him briefly while he was on a reporting trip ‘near the Afghan war
zone.’ ” Plaintiff did not accuse the officer “of using force against
him or putting him in handcuffs.”
2 Plaintiff’s later accounts (in 2005, 2006, 2009 and the
May 2015 blog post) offered varying descriptions of the
jaywalking stop. The Times report described a 2005 column in
the Boise Weekly about “pervasive police dishonesty,” where
plaintiff “cited his jaywalking case as an example, writing that
Durr handcuffed and ticketed him even though he had crossed
the street legally with a ‘walk’ signal,” saying the LAPD
“ ‘repeatedly ignored my complaints about this unprofessional
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ii. The LAPD records
The Times report recounted that after plaintiff’s May 11,
2015 blog post, “the LAPD contacted The Times to challenge
[plaintiff’s] account.” The LAPD “had investigated [plaintiff’s]
complaint in January 2002,” and provided The Times with
plaintiff’s letter of complaint about Officer Willie Durr and other
documents. These included “a report by Durr’s then-supervisor,
Sgt. Russell Kilby, who investigated the allegations; and a log of
calls Kilby made in unsuccessful attempts to reach [plaintiff]. [¶]
The LAPD also provided a copy of an audio recording of the
goon.’ ” In a 2006 post on his personal blog, plaintiff “invoked the
jaywalking ticket as an example of how police abuse citizens and
get away with it: ‘An African-American cop cuffed me, threw me
up against the wall and roughed me up before writing me a ticket
and letting me go.’ [¶] [Plaintiff] wrote: ‘I was polite. I didn’t
resist. I’m not stupid; the guy has the legal right to shoot me.
Anyway, I filed an Internal Affairs complaint. Guess what
happened? [¶] If you’re black and reading this, you know the
answer: Nada. Cops get away with murder all the time.’ ” In a
2009 column, “headlined ‘Everyone hates the cops,’ . . . he wrote:
‘I admit it: I don’t like cops.’ [Plaintiff] said he couldn’t ‘point to
a single positive experience I’ve ever had with a cop,’ adding that
he’d had ‘lots and lots of negative ones.’ ” Citing his 2001
jaywalking ticket, “[h]e wrote that Durr roughed him up and
threw his wallet—not merely his license—into the sewer, and
that the officer then ‘laughed and zoomed off on his motorcycle.’ ”
The Times report then points out that plaintiff’s 2015 blog post
included items that did not appear in the 2005, 2006 and 2009
accounts: the “crowd of two dozen passersby who shouted at
Durr,” and the “second motorcycle officer [who] drove up, rebuked
Durr and ordered him to let [plaintiff] go.”
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jaywalking stop made by Durr,” as well as a second recording
made by Sgt. Kilby “when he called [plaintiff’s] phone number
and left a voicemail. On the tape, Kilby is heard saying he had
left earlier messages to no avail.”
The Times report describes Officer Durr’s recording. It was
“made on a micro-cassette recorder and later transferred to a
digital format, runs about six minutes and includes traffic sounds
and other background noise. There are extended silences during
which Durr said he was checking [plaintiff’s] ID and filling out
the citation. [¶] A conversation between Durr and [plaintiff] is
audible, and it is civil. Durr is not heard being rude, ‘belligerent,’
‘hostile’ or ‘ill-tempered,’ as [plaintiff] has asserted. The officer is
heard calmly answering [plaintiff’s] questions. [¶] Neither man
is heard to raise his voice at any point. Nor does [plaintiff]
express any complaints about how is he [sic] being treated. [¶]
Early in the encounter, Durr asks [plaintiff] to remove his ID
from his wallet. Later, after he has filled out the citation, Durr
says: ‘I need you to go ahead and sign. . . . You’re not admitting
guilt.’ [¶] Soon after, the officer says: ‘Here’s your license back.’
[¶] About halfway through the recording, faint voices can be
heard in the background for about a minute and a half. The
comments are unintelligible on the LAPD tape. [¶] The
recording ends on a seemingly friendly note. [Plaintiff] appears
to ask the officer if he can recommend any restaurants in the
area. Durr responds that he is new to the neighborhood and
unfamiliar with ‘the local eateries.’ [¶] Durr is then heard to
say: ‘All right, have a good day.’ ”
The Times report indicates that while plaintiff repeatedly
wrote that the LAPD ignored his complaint, “[d]epartment
records show that investigators looked into his allegations,
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questioned the officer who ticketed [plaintiff], listened to the
recording and tried repeatedly to reach [plaintiff]. Then-Police
Chief Bernard C. Parks sent [plaintiff] a letter informing him
that an investigation had determined his allegations were
unfounded.”
iii. The Times’s investigation and
plaintiff’s explanation
The Times report describes several interviews conducted by
Times reporter Paul Pringle in July 2015. Mr. Pringle
interviewed Officer Durr, who “said he remembered the
encounter because it resulted in a complaint against him and an
investigation. [¶] Durr said he had not roughed up [plaintiff] or
handcuffed him—in his entire career, he said, he had never
handcuffed anyone for jaywalking. Durr also said that no second
officer ever appeared on the scene, and that there was no crowd
of shouting onlookers. [¶] He said the encounter was free of
rancor and he was surprised when [plaintiff] filed a complaint.
[¶] [Sgt.] Kilby, now retired, said in a separate interview that his
investigation found nothing to support [plaintiff’s] allegations.
He described Durr as ‘a non-problem officer,’ ‘a nice guy’ and
‘a hard worker.’ ”
The Times report recounted that reporter Pringle
“contacted [plaintiff] and sent him copies of the documents
provided by the LAPD and a copy of Durr’s audio recording.”
“In two interviews, [plaintiff] told Pringle that he stood by
his May 11 blog post and that Durr was lying. He verified that
the voice heard on the tape was his but asserted that the
recording was of such poor quality that it could not be used to
challenge his account. [¶] He said the tape ‘only captures a part
of what’s going on’ and that Durr might have been ‘muffling’ the
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recorder at key moments to conceal abusive behavior. [¶]
[Plaintiff] said he left his most serious allegations against Durr
out of his complaint to the LAPD because he did not ‘want it to
become a big deal.’ [¶] ‘I did not want that officer, I did not want
the LAPD in general, to feel that I was declaring war against
them,’ he said.”
“[Plaintiff] was asked why he didn’t complain to Durr
during the encounter about being mistreated. [Plaintiff] said he
would never complain to a policeman in such circumstances for
fear that the officer might arrest him, ‘disappear’ him in a jail cell
for several days without filing charges, or even kill him. [¶] ‘Did
I think that guy was going to kill me right there and then?’
[plaintiff] said. ‘I didn’t know. I don’t know.’ ” Plaintiff “said he
did not receive any phone message from police,” but
acknowledged receiving the letter from then-Chief Parks.
The Times report stated that “Pringle also asked [plaintiff]
to explain his apparently friendly exchange with Durr after the
citation was issued, in which he asked the officer to recommend a
restaurant in the area. [¶] [Plaintiff] said he had been
‘traumatized’ by the incident and likened his behavior to that of
‘rape victims calling their rapist back, and—you know, like, days
later—and wanting to get back together.’ ”
The Times report then describes plaintiff’s actions after the
Pringle interviews and its own further investigative activities. It
stated:
“[[P]laintiff] has attacked The Times in Web posts and
media interviews, accusing the paper of knuckling under to
pressure from the LAPD to discredit a critic.” Plaintiff
“contend[ed] that the LAPD transcript [was] incomplete and that
faintly audible background noises bolster his account. [Plaintiff]
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said he had Post Haste Digital, a Los Angeles company that does
sound work for the entertainment industry, enhance the
recording. [Plaintiff] maintains that on the enhanced version,
two women can be heard midway through the recording
complaining that [plaintiff] was handcuffed. [Plaintiff] said the
women were part of a crowd of people who protested his
treatment. He has published a transcript that he says is
consistent with this claim.” He and a co-author “wrote that
six unidentified ‘audio experts’—including both amateurs and
professionals, according to the post—said they believed the
recording had been spliced in places.”
The Times report states that Commander Andrew Smith,
an LAPD spokesman, “said LAPD experts later enhanced the
recording and could not hear anyone complain about handcuffs.
They found no indication that the tape was spliced or otherwise
altered, he said.” In addition:
“The Times had the recording analyzed by two leading
experts in audio and video forensics.” One of these, Edward J.
Primeau, “said that voices heard in the background on
[plaintiff’s] enhanced version are mostly unintelligible, and that
he did not detect any mention of handcuffs. He said [plaintiff’s]
transcript was ‘not accurate.’ ” Mr. Primeau also analyzed the
LAPD recording and “concluded ‘beyond a reasonable degree of
scientific certainty’ that the tape had not been spliced or
otherwise edited.” The second expert, Catalin Grigoras, “said his
analysis detected no reference to handcuffs”; that “a man and a
woman can be heard speaking in the background at one point,
but only a few of their words are intelligible”; they “appear to be
having a conversation unrelated to the jaywalking stop”; and
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“ ‘[i]t is obvious the police officer is not part of that
conversation.’ ”3
The Times report concluded by stating The Times
“continues to have serious questions about the accuracy of
[plaintiff’s] blog post”; that “[n]o version of the recording,
including [plaintiff’s] enhanced one, supports the cartoonist’s
allegations that Durr was violent, hostile, rude and belligerent”;
and that “Goldberg, the editorial page editor, said that in light of
all the available information, The Times stands by its note to
readers and its judgment that [plaintiff’s] May 11 blog post
should not have been published.”
2. The Complaint
On March 14, 2016, plaintiff filed his complaint against
The Times, various related companies, and four individual
defendants.4 Plaintiff alleged causes of action for defamation,
defamation per se, and intentional infliction of emotional distress
against all defendants. He also alleged, against the corporate
defendants, causes of action for violation of Labor Code section
1050 (blacklisting) and section 1102.5 (retaliation for disclosing
information about an employer’s violation of law), breach of
express oral contract, breach of implied-in-fact contract, and
3 The Times report also describes the background and
experience of both experts.
4 These were Austin Beutner (then publisher of The Times),
Nicholas Goldberg (editor of The Times’s editorial pages),
reporter Paul Pringle and Deirdre Edgar (The Times’s readers’
representative who wrote the introduction to the Times report).
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wrongful termination in violation of public policy. (We refer to
the corporate entities collectively as The Times.)
Plaintiff’s defamation claims alleged seven “false
statements” in the note to readers, and 25 “falsities” in the Times
report. (We recite in the margin the 10 statements plaintiff
continues on appeal to assert are “false statements.”)5 The
5 In his opening brief, plaintiff contends the following
statements are false statements of fact:
(1) “Since then, the Los Angeles Police Department has
provided records about the incident, including a complaint
[plaintiff] filed at the time.”
(2) “An audiotape of the encounter recorded by the police
officer does not back up [plaintiff’s] assertions; it gives no
indication that there was physical violence of any sort by
the policeman or that [plaintiff’s] license was thrown into
the sewer or that he was handcuffed. Nor is there any
evidence on the recording of a crowd of shouting onlookers.”
(3) “The tape depicts a polite interaction.”
(4) “The Los Angeles Police Department challenged [plaintiff’s]
account and provided documents and a tape recording of
the 2001 encounter that indicate the officer did not use
force against [plaintiff] and treated him politely.”
(5) “The Times interviewed [plaintiff] about the discrepancies
between the police records and tape recording and his blog
post.”
(6) “About halfway through the recording, faint voices can be
heard in the background for about a minute and a half.
The comments are unintelligible on the LAPD tape.”
(7) “Durr said he had not roughed up [plaintiff] or handcuffed
him—in his entire career, he said, he had never handcuffed
anyone for jaywalking.”
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complaint alleged the cited statements are false for various
reasons: the LAPD did not provide the records to The Times; The
Times “does not actually have the audiotape,” but rather an
unauthenticated digital copy of the original analog microcassette
tape of very poor quality, and subsequent enhancement “confirms
[plaintiff’s] version of the events, not the LAPD’s”; “the evidence
was unreliable”; and there are no discrepancies in his accounts of
the incident. The complaint also asserts that statements that the
recording and other evidence raised “serious questions about the
accuracy” of plaintiff’s blog post, and that the post “should not
have been published . . . necessarily and falsely impl[y] that
[plaintiff’s] work is of low-quality and lacks integrity.”
In addition, the complaint alleged “adverse employment
actions and behavior.” The complaint alleged plaintiff’s hiring
“as a freelance editorial cartoonist” in 2009. In addition to facts
already described about his experience, his work for The Times,
and his blog post, the complaint described his interview with
Paul Pringle and telephone calls from Mr. Goldberg. The
complaint alleged The Times “did not ask an independent audio
expert to authenticate or enhance the recording, or make any
effort whatsoever to investigate the LAPD’s claims before
(8) An LAPD spokesman told The Times that LAPD experts
“found no indication that the tape was spliced or otherwise
altered.”
(9) “[Plaintiff’s] accounts of the jaywalking stop have changed
over time in significant respects.”
(10) “No version of the recording, including [plaintiff’s]
enhanced one, supports the cartoonist’s allegations that
Durr was violent, hostile, rude and belligerent.”
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[plaintiff’s] termination.” The complaint alleges “egregious
conflicts of interest between the LAPD, the Times and its
Publisher”; The Times “rushed its decision to terminate [plaintiff]
in approximately 24 hours, without following due diligence for
allegations of employee misconduct, or the correct handling of
audio presented to the newspaper”; and also “failed to follow
standard procedure by failing to allow [plaintiff] to meet with the
editorial board” to discuss his case.
The complaint sought general and special damages,
punitive damages, and attorney fees.
3. The Special Motions to Strike
The Times filed a special motion to strike the complaint, as
did the individual defendants.
The individual defendants argued generally as follows.
Plaintiff’s defamation and emotional distress claims were based
exclusively on the content of the notice to readers and the Times
report (collectively, the Times articles). The Times articles
involved “allegations of police misconduct, accuracy of reports on
that issue, and accountability of those who exaggerate or
misrepresent information about police misconduct,” all of which
are matters of public interest well within the scope of the anti-
SLAPP statute. Plaintiff could not show a probability of
prevailing because of the fair report privilege (Civ. Code, § 47,
subd. (d)) that applies as a matter of law to all of plaintiff’s
content-based claims. In addition, each of the 32 statements
alleged in the complaint “is either substantially true; a subjective
conclusion based on disclosed facts; and/or not defamatory.”
The Times made the same arguments as to plaintiff’s
defamation and blacklisting claims. Plaintiff’s other claims (the
employment claims) also came within the scope of the anti-
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SLAPP statute, The Times argued, because they arise from The
Times’s “constitutionally protected editorial decision to stop
publishing [plaintiff’s] work.” In addition, plaintiff’s employment
claims “presuppose an ‘employment’ relationship that did not
exist.” In any event these claims “would fail on the merits
because Plaintiff did not plead, and cannot offer evidence to
prove, the elements of those claims.”
Plaintiff opposed both motions. Plaintiff summarized by
stating that “no protected activity forms the foundation of the
defamatory statements that effectively wrongfully terminated
Plaintiff’s employment in violation of public policy.” We will
elaborate as necessary in connection with our legal discussion,
post.
The trial court granted both motions.
Plaintiff filed a timely notice of appeal. Along with his
opening brief, plaintiff filed a request for judicial notice of
portions of an LAPD manual, pages from the docket of a
California Supreme Court case, and a decision in a Los Angeles
City Ethics Commission case. Plaintiff’s request provided no
explanation why the materials are relevant to this appeal
(violating California Rules of Court, rule 8.252(a)(2)), and did not
present them to the trial court despite their availability before
the trial court’s decision. Accordingly, we deny the request.
After the parties briefed the case, we granted an
application from California News Publishers Association and
First Amendment Coalition to file a brief as amici curiae in
support of defendants.
DISCUSSION
We first describe the applicable legal principles and then
turn to their application in this case.
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1. The Anti-SLAPP Statute and Procedure
A defendant may bring a special motion to strike any cause
of action “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 . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).) Acts
in furtherance of free speech rights in connection with a public
issue include, as relevant here, “any written or oral statement or
writing made in a place open to the public or a public forum in
connection with an issue of public interest,” and “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.” (Id.,
subd. (e)(3) & (4).)
When ruling on an anti-SLAPP motion, the trial court
employs a two-step process. It first looks to see whether the
moving party has made a threshold showing that the challenged
causes of action arise from protected activity. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If
the moving party meets this threshold requirement, the burden
then shifts to the other party to demonstrate a probability of
prevailing on its claims. (Ibid.) In making these determinations,
the trial court considers “the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); HMS
Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212
[“In opposing an anti-SLAPP motion, the plaintiff cannot rely on
the allegations of the complaint, but must produce evidence that
would be admissible at trial.”].)
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The anti-SLAPP statute, including the scope of the term
“public interest,” is to be construed broadly. (Nygård, Inc. v.
Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039-1042 (Nygård)
[discussing cases and legislative history of 1997 amendment
adding the directive to construe the statute broadly].) Nygård
concludes: “Taken together, these cases and the legislative
history that discusses them suggest that ‘an issue of public
interest’ within the meaning of section 425.16, subdivision (e)(3)
is any issue in which the public is interested. In other words, the
issue need not be ‘significant’ to be protected by the anti-SLAPP
statute—it is enough that it is one in which the public takes an
interest.” (Id. at p. 1042.)
Our review is de novo. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
2. The Defamation Claims
a. The first prong: protected activity
As stated above, written statements in a public forum in
connection with an issue of public interest are protected free
speech activity. (Code Civ. Proc., § 425.16, subds. (b), (e)(3) &
(4).) Here, plaintiff’s defamation claims arose from the Times
articles. Both articles were published in a public forum, and both
concerned issues of public interest.
The note to readers concerned the accuracy of a blog posted
on The Times’s website discussing allegations of police
misconduct and the propriety of the LAPD policy of enforcing the
city’s jaywalking laws. The former issue (police misconduct) is
always a matter of public interest, and the latter (jaywalking
enforcement) had been recently in the news by virtue of The
Times’s reporting on the effect of $197 jaywalking fines on poor
and working class Angelenos, to which hundreds of readers had
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responded. The accuracy—or not—of publications by The Times
on these issues is likewise and necessarily a matter of public
interest.
The Times report included the same issues. In addition,
when the Times report was published, the issue of The Times’s
decision to stop publishing plaintiff’s cartoons and blog posts, and
the claimed defamatory nature of the note to readers, had
likewise become issues of public interest as a consequence of
extensive media coverage.
Wilson involved different facts. The court in Wilson found
the plaintiff’s defamation claim did not arise from a public issue
or an issue of public interest. The plaintiff was not a figure in the
public eye and the allegedly defamatory statement that he
committed plagiarism was privately made and did not contribute
to any public debate. Thus, there is no need to reconsider our
opinion regarding the defamation claims in light of Wilson.
b. The second prong: probability of
prevailing on the merits
Plaintiff has not produced evidence demonstrating a
probability of prevailing on his defamation claims.
i. The legal requirements
“The tort of defamation ‘involves (a) a publication that is
(b) false, (c) defamatory, and (d) unprivileged, and that (e) has a
natural tendency to injure or that causes special damage.’ ”
(Taus v. Loftus (2007) 40 Cal.4th 683, 720; Nygård, supra,
159 Cal.App.4th at pp. 1047-1048.)
ii. The fair report privilege
Defendants contend, and we agree, that the Times articles
were absolutely privileged under Civil Code section 47,
19
subdivision (d) (section 47(d)).6 Under that provision (the fair
report privilege), a publication is privileged if it is made “[b]y a
fair and true report in . . . a public journal, of (A) a judicial,
(B) legislative, or (C) other public official proceeding, or (D) of
anything said in the course thereof . . . .” (§ 47(d)(1), italics added;
see McClatchy Newspapers, Inc. v. Superior Court (1987)
189 Cal.App.3d 961, 974 (McClatchy) [“Even when the print
media publish an accurate report of a statement they know to be
false, the protective cloak of subdivision 4 [now subdivision (d)]
remains intact, not penetrated by a finding of malice.”]; Green v.
Cortez (1984) 151 Cal.App.3d 1068, 1074 (Green) [the fair report
privilege “has been an absolute one” since 1945].)
“The meaning of a ‘fair and true report’ is well established
in California case law. . . . [A] media defendant does not have to
justify every word of the alleged defamatory material that is
published. [Citation.] The media’s responsibility lies in ensuring
that the ‘gist or sting’ of the report—its very substance—is
accurately conveyed. [Citation.] Moreover, this responsibility
carries with it a certain amount of literary license. The reporter
6 Under section 47(d), a privileged publication or broadcast is
one made “(1) By a fair and true report in, or a communication to,
a public journal, of (A) a judicial, (B) legislative, or (C) other
public official proceeding, or (D) of anything said in the course
thereof, or (E) of a verified charge or complaint made by any
person to a public official, upon which complaint a warrant has
been issued. [¶] (2) Nothing in paragraph (1) shall make
privileged any communication to a public journal that does any of
the following: [¶] (A) Violates Rule 5–120 of the State Bar Rules
of Professional Conduct. [¶] (B) Breaches a court order. [¶]
(C) Violates any requirement of confidentiality imposed by law.”
20
is not bound by the straitjacket of the testifier’s exact words; a
degree of flexibility is tolerated in deciding what is a ‘fair
report.’ ” (McClatchy, supra, 189 Cal.App.3d at pp. 975-976.)
iii. This case
Here, the focus of the Times articles was the accuracy of
material published on its website, and central to that issue was
the 2001 LAPD investigation of plaintiff’s complaint to the LAPD
about his 2001 jaywalking arrest. That pivotal issue included the
description of the complaint plaintiff made about his jaywalking
arrest, the LAPD’s investigation of the officer’s conduct during
the arrest, and the officer’s recording of the incident, revealing
the differences between the facts found by the LAPD and
plaintiff’s own version of the incident. That was a report on a
“public official proceeding”—the LAPD’s investigation of
plaintiff’s complaint about his jaywalking arrest. The reporting
on that subject is the basis for plaintiff’s defamation claim,
without which there would be no claim. And the authorities are
clear that a police investigation is a “public official proceeding”
within the meaning of section 47(d). Thus:
“A police investigation similar to the one in this case
[involving an officer’s behavior during an arrest] has been held to
be an ‘official proceeding authorized by law’ for purposes of
section 47, subdivision 2 [now section 47, subdivision (b)]
[citation], and there can be no doubt that such an investigation is
similarly a ‘public official proceeding’ under subdivision 4 [now
section 47(d)].” (Green, supra, 151 Cal.App.3d at p. 1073; see also
Howard v. Oakland Tribune (1988) 199 Cal.App.3d 1124, 1128
[Green’s interpretation of “ ‘public official proceeding’ to include a
police investigation into allegations of use of excessive force by
21
police” is “consistent with what we construe to be the plain
meaning of section 47, subdivision 4 [now section 47(d)]”].)
Ignoring these authorities, plaintiff asserts the LAPD
investigation of his complaint was not a “public official
proceeding” on the theory that “[t]here was never even a
preliminary investigation,” and there is no “public official
proceeding” until the complainant is interviewed and an
“adjudicatory process” begins. Plaintiff cites no legal authorities
that support his assertion.7 Instead, he claims that LAPD
procedures in its departmental manual were not followed because
he was not interviewed. Plaintiff may not rely on the manual, as
7 Plaintiff cites cases that do not help him. For example, in
Burrill v. Nair (2013) 217 Cal.App.4th 357, 397-398, disapproved
on another point in Baral v. Schnitt (2016) 1 Cal.5th 376, 396,
footnote 11, the court stated that “[t]he [fair report] privilege has
been held to apply to fair reports of police investigations.”
(Burrill, at pp. 397-398.) It did not apply, Burrill held, “to a
report of the charges made in a citizen’s criminal complaint,
made by the citizen who filed that complaint, when there is no
evidence any official action has been taken with respect to the
complaint.” (Id. at p. 398.) Consequently, the fair report
privilege did not apply to complainant’s own defamatory
statements in a radio interview, made on the same day he filed
his criminal complaint. (Id. at pp. 398, 375-376; see id. at p. 397
[“ ‘An important reason for this position has been to prevent
implementation of a scheme to file a complaint [in a judicial
proceeding] for the purpose of establishing a privilege to publicize
its content and then dropping the action.’ ”].) This is plainly not
such a case. And, other authorities have declined to follow
Burrill. (Healthsmart Pacific, Inc. v. Kabateck (2016)
7 Cal.App.5th 416, 433-434.)
22
we have denied his request for judicial notice. The manual would
not assist him in any event; it does not purport to tell us (nor
could it) what constitutes a “public official proceeding.”
Plaintiff also asserts, incorrectly, that the fair report
privilege is limited to publication of a verified charge or
complaint on which a warrant has been issued. Such
publications are also privileged (§ 47(d)(1)(E)), but the limitation
plaintiff posits simply does not exist, as the language of the
statute shows. (See fn. 6, ante.)
Next, plaintiff contends the Times articles were not “fair
and true report[s]” of the LAPD files, and were instead “reports of
the Times’ own intervening investigation.” Plaintiff points out
that the absolute privilege in section 47(d) does not immunize
private investigations, citing Hawran v. Hixson (2012)
209 Cal.App.4th 256, 280-282 (Hawran). Hawran is not helpful
to plaintiff.
In Hawran, a company issued a press release concerning its
internal investigation into its handling of certain research and
development test data and results. The press release was
disseminated on the same day the company filed legally required
disclosures to the Securities and Exchange Commission (SEC),
and after an SEC investigation had begun. (Hawran, supra,
209 Cal.App.4th at pp. 262-263, 264.) The court found the press
release did not “purport[] to report on, summarize or describe the
SEC proceeding or investigation, the history of the SEC
proceeding or investigation, or any communications made ‘in the
course of’ that investigation. Rather, it is plain from the face of
the document that the September press release is reporting the
results and consequences of [the defendant’s] own internal
investigation.” (Id. at p. 281.)
23
That is not the case here. Both Times articles report fully
on the LAPD investigation of plaintiff’s complaint. And the
complaint and the information revealed by the LAPD
investigation (including the audio recording of the incident), as
reported in the Times articles, are at the center of plaintiff’s
defamation claims.
In a related contention, plaintiff asserts that even if the fair
report privilege applies, the privilege “should not reach those
portions of the [Times articles] that recount the Times’
investigation.” Plaintiff cites no authority for this contention,
and we reject it. We do not think the fair report privilege can be
lost by virtue of the inclusion of material that is integral to the
subject of the Times articles. (As plaintiff himself says, “[w]hat
actually occurred at the time of [plaintiff’s] confrontation with
Officer Durr is the crux of the case.”)
The authorities support our conclusion. (See Sipple v.
Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 241-242
[“the substantial public concerns implicated in [section 47(d)]
support the extension of a broad protection over the media”].)
Sipple rejected a contention that the fair report privilege “should
be applied narrowly and should not shield the entire article but
only those statements that are part of the proceedings.” (Id. at
p. 241.) The court affirmed the trial court’s ruling that
statements not a part of the proceeding “did not contain any
information to alter the ‘gist or sting’ of the evidence presented in
the judicial proceeding.” (Id. at p. 231.) So it is here, where
nothing in the Times articles alters the “gist or sting” of the
evidence in the LAPD investigation.
Further, even if we were to find the Times articles could be
segregated into portions that are privileged and portions that are
24
not, it would avail plaintiff nothing. First, the “false statements
of fact” plaintiff describes in his brief (see fn. 5, ante) relate in
substantial part to the LAPD materials, the report of which is
unquestionably privileged. And second, “[t]o state a defamation
claim that survives a First Amendment challenge, . . . a plaintiff
must present evidence of a statement of fact that is ‘provably
false.’ ” (Nygård, supra, 159 Cal.App.4th at p. 1048.) “ ‘The
dispositive question . . . is whether a reasonable trier of fact could
conclude that the published statements imply a provably false
factual assertion.’ ” (Ibid.) None of the remaining statements
plaintiff cites, recited in the margin, meets that standard.8
8 The allegedly false statements not directly related to the
LAPD investigation, along with plaintiff’s assertions about them,
are: (1) “[t]hat the Times interviewed [plaintiff] about
discrepancies between the LAPD records, the tape and his blog
post.” (Plaintiff says this is false because there were no
discrepancies, but clearly there were.) (2) “That Officer Durr
had never handcuffed anyone for jaywalking.” (Plaintiff asserts
Officer Durr has handcuffed a suspect for illegal street racing.)
(3) “That the LAPD told the Times that the audio has no
indication that the tape was spliced or altered.” (Plaintiff says
there was no way to determine that because the audio was digital
and not the original tape.) (4) “That Rall has offered changing
versions of the 2001 detention over time and those changes are
‘significant.’ ” (Plaintiff says there are no changing versions, just
“different levels of detail.”) (5) “That no version of the recording
of the 2001 detention . . . supports the allegation that Durr was
violent, hostile, rude and belligerent.” (Plaintiff cites as evidence
of falsity his declaration describing what he heard a radio talk
show host say (which is inadmissible hearsay), and what he
heard on his enhanced recording. Both plaintiff’s and The
Times’s statements are subjective conclusions about what could
25
Next, plaintiff contends his LAPD complaint and related
materials were exempt from the fair report privilege by the
confidentiality exception to the privilege. (A “communication to a
public journal” that “[v]iolates any requirement of confidentiality
imposed by law” is not privileged. (§ 47(d)(2)(C).)) Plaintiff
misconstrues this exception. Police personnel records of
complaints or investigations are indeed subject to various
confidentiality restrictions, such as Penal Code section 832.7.
But those confidentiality requirements have no application here.
Such restrictions are for the protection of investigative files and
the police officers involved. The officer “may, of course, choose to
waive the confidentiality protection of section 832.7.” (Berkeley
Police Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385, 406,
fn. 22.) The LAPD voluntarily provided the investigative files to
both The Times and plaintiff, and plaintiff points to no evidence
that Officer Durr—who was later interviewed by reporter Pringle
on the subject—had any objection. Plainly he did not. No
confidentiality provision was violated by the Times articles.
Finally, plaintiff asserts that the application of the fair
report privilege in this case is a jury issue. Again, we disagree.
Whether a report is “fair and true” is a jury question only if
“reasonable minds could disagree as to the effect of the
communication on the average reader or listener.” (J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016)
247 Cal.App.4th 87, 98 (J-M Manufacturing).) But “appellate
and could not be heard.) A reasonable trier of fact could not
conclude that any of the cited statements is false or implies “a
provably false factual assertion.” (Nygård, supra,
159 Cal.App.4th at p. 1048.)
26
courts have not been reluctant to decide the fair report privilege
applies as a matter of law when the undisputed facts are
insufficient to support a judgment for the plaintiff.” (Id. at p. 99.)
That is the case here.
Both of the Times articles are in the record. So is the
material from the LAPD investigation on which the articles
report, including a copy of Officer Durr’s audio recording. The
bottom line, as in J-M Manufacturing, is that “[t]he substance of
[the Times articles] was accurate,” and as a consequence, the
Times articles were absolutely privileged under section 47(d). (J-
M Manufacturing, supra, 247 Cal.App.4th at p. 105.)
We have described the Times articles in great detail, and
see no possibility that reasonable minds could disagree on the
accuracy of either report. The trial court summed up the point
nicely: “The report merely stated the conclusion of the [LAPD]
investigation, that [plaintiff’s] complaint was unfounded, and
reviewed the evidence it was given by the LAPD, which the
LAPD used in the investigation, and the logs of attempted
communications with plaintiff during the investigation. There is
no dispute that the materials reviewed were given to the Times
by the LAPD. Plaintiff lacks evidence that the note and article
reported falsely on this evidence as received. This is privileged.”
In the end, plaintiff’s claim that “reasonable minds could
disagree on what is fair” rests on his assertion that he disputed
The Times’s “interpretation” of the audio recording, that his
enhancement of the recording “substantially vindicated his
27
position”; and that this court “must assume the validity of
[plaintiff’s] proof.”9 That is not the case.
Plaintiff’s proof consists of his declaration that he listened
to an audio enhancement of the LAPD recording provided to him
by Post Haste Digital, and on the enhanced recording he heard
remarks by three different women, two of whom referred to
handcuffing plaintiff. That evidence casts no doubt on the
accuracy of The Times’s report on the evidence that was given to
it by the LAPD concerning plaintiff’s complaint and its
investigation. Further, the Times report also described plaintiff’s
version of what he heard on the Post Haste Digital enhancement,
and provided an online link to that enhancement so that readers
could listen for themselves. The Times report also described the
views of its experts, who examined plaintiff’s enhanced version
9 Plaintiff cites Soukup v. Law Offices of Herbert Hafif,
supra, 39 Cal.4th at page 291, for the proposition that we must
assume his enhanced recording shows what he says it shows.
Plaintiff misses the point. He cannot establish his case has
minimal merit because the Times articles were absolutely
privileged as a matter of law, as we discuss in the text. Soukup
merely recites the standard principles that in assessing the
evidence on an anti-SLAPP motion, the court does not weigh
credibility or comparative probative strength of competing
evidence. Rather, in assessing whether the defendant’s evidence
defeats the plaintiff’s attempt to establish evidentiary support for
the claim, “it is ‘the court’s responsibility . . . to accept as true the
evidence favorable to the plaintiff.’ ” Those principles simply
have no application here, where it does not matter what
plaintiff’s enhanced recording shows; the issue, as we explain in
the text, post, is whether the Times report was a fair and true
report on the evidence given to The Times by the LAPD.
28
and disagreed with what plaintiff said he heard. As the trial
court aptly concluded, “[p]laintiff has not established that
defendants were obligated to find the enhanced tape accurate,
credible and audible . . . .” (Cf. Partington v. Bugliosi (9th Cir.
1995) 56 F.3d 1147, 1156 [“when a speaker outlines the factual
basis for his conclusion, his statement is protected by the First
Amendment”].)
As the authorities tell us, the fair report privilege “ ‘does
not require the reporter to resolve the merits of the charges, nor
does it require that he present the [plaintiff’s] version of the
facts.’ [Citations.] [¶] The ‘fair and true’ requirement of
section [47(d)] therefore does not require a media defendant ‘to
justify every word of the alleged defamatory material that is
published. The media’s responsibility lies in ensuring that the
‘gist or sting’ of the report—its very substance—is accurately
conveyed.’ ” (Dorsey v. National Enquirer, Inc. (9th Cir. 1992)
973 F.2d 1431, 1436, fn. omitted.)
In sum, we cannot find the Times articles to be anything
other than a fair and true report of an LAPD investigation that
was central to the substance of the articles, and accordingly
absolutely privileged. Consequently, plaintiff cannot establish a
probability of prevailing on his defamation claims.10
10 Plaintiff makes a separate argument that he has
established a probability of prevailing on his blacklisting claims.
(Under Labor Code section 1050, “[a]ny person . . . who, after
having discharged an employee from the service of such person or
after an employee has voluntarily left such service, by any
misrepresentation prevents or attempts to prevent the former
employee from obtaining employment, is guilty of a
misdemeanor.” Section 1054 authorizes a civil action for treble
29
3. Plaintiff’s Employment Claims
a. The first prong: protected activity
The trial court concluded The Times has a First
Amendment right to publish or not to publish any story it
chooses, and that plaintiff’s wrongful termination and related
claims arose from The Times’s decision not to publish any of his
work in the future. In his initial briefing, plaintiff contended this
was error under Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057 (Park), and also relied on
Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510(Hunter) and the now-reversed Court of Appeal opinion in Wilson.
As we explained in our earlier opinion, there was no error.
In his supplemental briefing, plaintiff concedes that, based
on “clear language in Wilson, [plaintiff] can no longer argue that
The Times had failed to meet its prong one burden regarding the
employment claims.” We reaffirm our analysis of Park and
Hunter, and briefly describe Wilson’s definitive resolution of the
issue.
damages for a violation of section 1050.) But, aside from any
other defects, plaintiff’s blacklisting claim arises from the same
source as his defamation claims—the Times articles—and is
subject to the same limitations. (See Blatty v. New York Times
Co. (1986) 42 Cal.3d 1033, 1043 [“the various limitations rooted
in the First Amendment are applicable to all injurious
falsehood claims and not solely to those labeled ‘defamation’ ”].)
As we have found, the Times articles were absolutely privileged.
This eliminates plaintiff’s blacklisting claims along with his
defamation claims.
30
In Park, the plaintiff was denied tenure at California State
University, Los Angeles, and filed suit under the California Fair
Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.)
for national origin discrimination. The defendant filed an anti-
SLAPP motion. The trial court denied the motion because the
complaint was based on the defendant’s decision to deny tenure,
rather than on any communicative conduct in connection with
that decision, and denial of tenure based on national origin is not
protected activity. (Park, supra, 2 Cal.5th at p. 1061.) The
Supreme Court agreed with the trial court, and explained:
“[A] claim is not subject to a motion to strike simply
because it contests an action or decision that was arrived at
following speech or petitioning activity, or that was thereafter
communicated by means of speech or petitioning activity.
Rather, a claim may be struck only if the speech or petitioning
activity itself is the wrong complained of, and not just evidence of
liability or a step leading to some different act for which liability
is asserted.” (Park, supra, 2 Cal.5th at p. 1060.)
In this case, unlike Park, The Times’s decision not to
publish plaintiff’s work in the future is the “wrong” plaintiff
complains of in his wrongful termination and related employment
claims. It is equally clear that a newspaper’s decision to publish
or not to publish a contributor’s work is protected by the First
Amendment.
“[T]he courts have long held that the right to control the
content of a privately published newspaper rests entirely with
the newspaper’s publisher. The First Amendment protects the
newspaper itself, and grants it a virtually unfettered right to
choose what to print and what not to.” (Eisenberg v. Alameda
Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1391 (Eisenberg);
31
see also Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S.
241, 258 [“The choice of material to go into a newspaper, . . . and
treatment of public issues and public officials—whether fair or
unfair—constitute the exercise of editorial control and judgment.
It has yet to be demonstrated how governmental regulation of
this crucial process can be exercised consistent with First
Amendment guarantees of a free press . . . .”]; Ampersand
Publishing, LLC v. NLRB (D.C. Cir. 2012) 702 F.3d 51, 56
[“The First Amendment affords a publisher—not a reporter—
absolute authority to shape a newspaper’s content.”].)
In short, we find it incontrovertible that plaintiff’s
employment claims arose directly from The Times’s protected
First Amendment conduct: deciding not to publish plaintiff’s
work. The Times’s decision not to publish plaintiff’s cartoons and
blogs is not “just evidence of liability” and it is not “a step leading
to some different act for which liability is asserted.” (Park, supra,
2 Cal.5th at p. 1060.) The decision not to publish is the “act for
which liability is asserted.” (Ibid.)
Of course The Times is not free to fire its employees for
reasons that are illegal under FEHA or other laws, under the
guise of free speech. That is what Park is all about. It was the
decision to deny tenure for allegedly illegal reasons that was the
basis for the plaintiff’s suit—not the communicative activity that
led up to that decision, and was evidence of the defendant’s
asserted liability for denying tenure.
Plaintiff’s extensive discourse on Hunter, supra,
221 Cal.App.4th 1510 has no pertinence for this case either. In
Hunter, the court concluded that CBS’s selection of a weather
anchor for its television stations qualified as an act in
furtherance of the exercise of free speech. (Id. at p. 1521; see
32
ibid. [the selections “ ‘helped advance or assist’ [two] forms
of First Amendment expression [reporting the news and creating
a television show],” and “therefore qualifies as a form of protected
activity”]; id. at p. 1525 [“CBS’s protected activity—employment
decisions regarding its weather anchors—is not incidental to [the
plaintiff’s] discrimination claims; indeed, it is the very conduct on
which his claims are based.”].)
Park discussed Hunter in the course of rejecting the
defendant university’s contention that tenure decisions implicate
the public interest as much as decisions concerning who should
appear in a news broadcast. (Park, supra, 2 Cal.5th at p. 1071-
1072.) Park did not “express any opinion concerning whether
[Hunter] itself was correctly decided.” (Park, at p. 1072.) But in
Wilson, the Supreme Court cited Hunter with approval. (Wilson,
supra, 7 Cal.5th at pp. 894-896, 889, fn. 7.)
That brings us to Wilson. Wilson confirms, as plaintiff
concedes, that The Times met its burden to show plaintiff’s
employment claims arose from protected activity. Wilson held
that the anti-SLAPP statute may apply to employment
discrimination and retaliation claims, and those claims are not
excluded from the anti-SLAPP statute just because plaintiff
alleges an improper motive for defendant’s protected activity.
(Wilson, supra, 7 Cal.5th at p. 881.) Further, Wilson tells us,
“[d]isciplining an employee for violating . . . ethical standards
furthers a news organization’s exercise of editorial control to
ensure the organization’s reputation, and the credibility of what
it chooses to publish or broadcast, is preserved. These objectives
lie ‘at the core’ of the press function.” (Id. at p. 898.) Here, as in
Wilson, “[t]he staffing decision thus qualifies as ‘conduct in
furtherance’ of [the defendant’s] ‘speech in connection with’ public
33
matter.” (Wilson, supra, 7 Cal.5th at p. 898, quoting Code Civ.
Proc., § 425.16, subd. (e)(4).) In short, Wilson fully supports our
analysis.
b. The second prong: probability of
prevailing on the merits
In Wilson, the court did not decide whether the plaintiff’s
termination claims had the minimal merit necessary to proceed,
instead remanding that issue to the Court of Appeal. (Wilson,
supra, 7 Cal.5th at p. 899.) On this point, plaintiff’s
supplemental brief offers nothing new, based on Wilson or
otherwise. We thus have no reason to conclude our original
analysis was flawed.
And so we return to a point pertinent to the merits of
plaintiff’s employment claims: that The Times is not free to fire
its employees for reasons that are illegal under FEHA or other
laws, under the guise of free speech. But absent some illegal
basis for the decision, The Times may fire an employee for any
reason or no reason. That is the nature of at-will employment.
The parties argue at length about whether plaintiff was an
employee or an independent contractor. (Plaintiff apparently
does not challenge the authorities holding that, because
independent contractors are not employees, they lack standing to
assert a claim for wrongful termination in violation of public
policy. (E.g., Sistare-Meyer v. Young Men’s Christian Assn. (1997)
58 Cal.App.4th 10, 14, 18 [independent contractors cannot assert
claims for wrongful termination in violation of public policy
predicated on race-based terminations].)) Like the trial court, we
see no reason to address this issue, because plaintiff in any event
has not stated a claim.
34
To prevail on a claim for wrongful termination in violation
of public policy, the employee must show that the public policy
allegedly violated is “supported by either constitutional or
statutory provisions” and that it is “ ‘fundamental’ and
‘substantial,’ ” among other points. (Stevenson v. Superior Court
(1997) 16 Cal.4th 880, 889-890 (Stevenson).) Plaintiff made no
such showing.
Plaintiff asserts he was “pretextually fired for fabrication,
but actually it was in retaliation for offending the police chief.”
Plaintiff calls this “retaliation by proxy.” By this he means that
“[t]here was nothing the LAPD could do to harm [plaintiff]
directly; so they called in a favor and had the Times fire him.”
“Retaliation by proxy” is not a legal doctrine, and indeed is not a
term that has been used in any California case of which we are
aware. More to the point, plaintiff has identified no
constitutional or statutory provision that would support his
assertion of a public policy violation.
In other words, even if The Times had fired plaintiff “in
retaliation for offending the police chief”—a claim that is belied
by plaintiff’s own evidence that The Times published many of
plaintiff’s cartoons criticizing the LAPD and Chief Beck—plaintiff
has identified no constitutional, statutory or regulatory provision
that would have been violated.11 Without constitutional or
11 In his complaint, plaintiff alleged he was terminated “in
part because of plaintiff’s protected status” (citing every protected
status, including pregnancy, listed in FEHA), as well as Labor
Code section 1102.5 (retaliation for disclosing information about
an employer’s violation of law). He presented no evidence to
support those assertions, and does not cite FEHA or Labor Code
section 1102.5 in his briefs on appeal.
35
statutory support for an alleged public policy, a claim for
wrongful termination in violation of public policy cannot succeed.
(E.g., Stevenson, supra, 16 Cal.4th at pp. 889-890.)
Nonetheless, plaintiff purports to have found a case “right
on point”—Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th
1477 (Ali).12 Ali is not on point. In that case, the court reversed
a summary judgment for the defendant newspaper on the
plaintiff’s claim for wrongful termination in violation of public
policy. This was because there were triable issues of fact on two
issues. One was the independent contractor issue, and the other
was “whether his employment was terminated for engaging in
protected political speech outside the workplace.” (Id. at p. 1481,
italics added.)
In Ali, the plaintiff asserted he was fired “not because the
content of his articles contravened the editorial policies or
standards of the newspaper, but because outside of the workplace
he publicly criticized an influential public official for supporting a
particular political candidate.” (Ali, supra, 112 Cal.App.4th at
p. 1488, italics added.) If true, that would have violated the
public policy “prohibiting employers from terminating an
employee for engaging in political activity . . . found in Labor
Code section 1101.” (Ali, at p. 1487.)
Obviously, nothing like that happened here, or was alleged
to have happened here. The Times did not refuse to publish
plaintiff’s cartoons and blogs because of his political activity
outside the workplace. The Times did so based on plaintiff’s own
12 Ali was disapproved on another ground in Reid v. Google,
Inc. (2010) 50 Cal.4th 512, 532, footnote 7.
36
work, written for and published on The Times’s website. Even
had plaintiff alleged violations of Labor Code sections 1101 and
1102 in his complaint, which he did not, plaintiff cites no
authority suggesting those provisions would apply in these
circumstances.
Likewise, plaintiff has not established a probability of
prevailing on his claims for breach of an express oral contract (or
an implied-in-fact contract) not to terminate him without good
cause. His opening brief does not recite the elements necessary
to state those claims, and he cites no evidence at all that supports
the existence of, or a breach of, any such contract. Indeed,
plaintiff states he “is not even objecting to his at-will status
under most circumstances”—whatever that means.
The only evidence plaintiff cites consists of declarations
from other cartoonists stating that in similar circumstances, the
management of their newspapers “would [have] met about it
personally,” “would have given me an opportunity to hear and
respond to the evidence,” would have “offer[ed] me a fair
hearing,” and “always consulted me before taking any action.”
Plaintiff says he is “seeking vindication of the policy” in the
industry that an employee accused of violating journalistic ethics
be given “a fair opportunity to present his position before being
fired.” But plaintiff has not produced evidence to establish a
prima facie case for the existence of an oral contract with The
Times.
Plaintiff presents no argument concerning his claim for
intentional infliction of emotional distress, and accordingly any
assertion of error on that claim is forfeited.
37
DISPOSITION
The orders are affirmed. Defendants shall recover their
costs on appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
38