McNair v. National Collegiate Athletic Assn. CA2/3 ( 2021 )

Filed 2/5/21 McNair v. National Collegiate Athletic Assn. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TODD McNAIR, B295359
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC462891)
v.
NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Frederick C. Shaller, Judge. Affirmed.
Munger Tolles & Olson, Donald B. Verrilli, Jr., Glenn D.
Pomerantz, Nicholas S. Dufau; Wilkinson Walsh + Eskovitz,
Kosta S. Stojilkovic, Rakesh Kilaru and Julie B. Rubenstein for
Defendant and Appellant.
Greene Broillet & Wheeler, Bruce A. Broillet, Scott H. Carr,
Christian T. F. Nickerson; Esner, Chang & Boyer, Stuart B.
Esner and Kevin K. Nguyen for Plaintiff and Respondent.
This is the fourth proceeding before this court in the
defamation action brought by plaintiff Todd McNair against the
National Collegiate Athletic Association (the NCAA).1 The
lawsuit arose from the NCAA’s finding that McNair, a former
assistant coach for the University of Southern California (USC)
football team, violated ethical conduct regulations during the
NCAA’s investigation into whether team member Reggie Bush
received improper benefits while he was a student-athlete at
USC. In this appeal, the NCAA challenges the trial court’s
declaratory judgment and its order granting McNair’s motion for
new trial. We hold that the trial court did not abuse its
discretion in finding insufficient evidence to justify the verdict on
falsity. Accordingly, we affirm the new trial order and do not
address the NCAA’s challenge to the declaratory judgment.
BACKGROUND
I. The NCAA
“The NCAA is a private, voluntary organization composed
of approximately 1,200 colleges, universities, and other
educational institutions throughout the United States. Its
purpose is ‘ “to maintain intercollegiate athletics as an integral
part of the educational program and the athlete as an integral
part of the student body, and by so doing, retain a clear line of
demarcation between college athletics and professional sports.” ’ ”
(McNair I, supra, 234 Cal.App.4th at p. 29.)
1McNair v. National Collegiate Athletic Assn. (2015) 234
Cal.App.4th 25 (McNair I); McNair v. National Collegiate Athletic
Association (Dec. 7, 2015, B245475) [nonpub. opn.] (McNair II);
McNair v. Superior Court (2016) 6 Cal.App.5th 1227.
2
The NCAA accomplishes this purpose by adopting and
enforcing a constitution, bylaws, and regulations. (McNair I,
supra, 234 Cal.App.4th at p. 29.) Under the enforcement process,
when the NCAA receives an allegation of a rule violation,
investigators attempt to interview everyone who may have
knowledge of the alleged violation. (McNair II, supra, B245475.)
If the enforcement staff concludes there is sufficient information
to indicate that NCAA rules have been violated, it provides the
institution with a notice of allegations. At the conclusion of its
investigation, the enforcement staff submits a case summary to
its Committee on Infractions (the COI). (Ibid.) The COI is
comprised of athletic directors, athletic conference
commissioners, faculty athletic representatives, judges,
attorneys, and professors, who serve voluntarily and not as
employees of the NCAA. (Ibid.) After holding a hearing, the
voting members of the COI deliberate in private. (Ibid.) The
COI’s findings are made, and the penalties are imposed, in an
infractions report. The NCAA Infractions Appeals Committee
hears any appeal of the COI’s determinations. (Ibid.) The
NCAA’s bylaws require that COI and Appeals Committee reports
“ ‘be made available to the national wire services and other media
outlets.’ ” (Ibid.)
Member institutions, along with their employees, student
athletes, and alumni agree to comply with the rules and
regulations and to submit to the NCAA’s enforcement process.
Because the NCAA does not have subpoena power, the
enforcement staff relies on the cooperation of witnesses.
(McNair I, supra, 234 Cal.App.4th at p. 29.) Under this so-called
cooperative principle, member institutions agree to be
transparent and cooperative, and that the process will be fair.
3
The NCAA is empowered to penalize a coach and an
institution when, among other things, a coach knows of an
infraction and fails to report it, or knowingly furnishes false or
misleading information about involvement in, or knowledge of, a
rules violation.
II. The allegations
In 2006, during Bush’s third year of college, the NCAA
received allegations that he had violated NCAA rules while he
was a running back on the football team. According to the
allegations, Lloyd Lake (Lake), a convicted felon, and his
associate Michael Michaels (Michaels) formed a sports agency
and marketing company and began giving Bush and his parents
cash and other benefits such as merchandise, housing, lodging,
and transportation in exchange for Bush’s promise to sign with
Lake’s agency when he began playing professional football.
Although this arrangement rendered Bush ineligible to
participate in college football, he continued to play for USC.
Based on these allegations and others involving the men’s
basketball and women’s tennis programs at USC, the NCAA
commenced a sweeping, four-year investigation into possible
violations of NCAA legislation in USC’s intercollegiate athletics
program.
III. The operative statement
At the close of the enforcement process, the COI issued its
67-page infractions report containing numerous findings and
imposing significant sanctions against USC’s football program.
Five pages of the COI report concerned McNair, the
running backs’ coach. Specifically, the NCAA’s COI found in the
operative statement at issue here:
4
“At least by January 8, 2006, the assistant football coach
[McNair] had knowledge that [Bush] and [Lake and Michaels]
likely were engaged in NCAA violations. At 1:34 a.m. he had a
telephone conversation for two minutes and 23 seconds with
[Lake] during which [Lake] attempted to get [McNair] to convince
[Bush] either to adhere to the agency agreement or reimburse
[Lake and Michaels] for money provided to [Bush] and his family.
Further, during his September 19, 2006, and February 15, 2008,
interviews with the enforcement staff, [McNair] violated NCAA
ethical conduct legislation by providing false and misleading
information regarding his knowledge of this telephone call and
the NCAA violations associated with it. [McNair] failed to alert
the institution’s compliance staff of this information and later
attested falsely, through his signature on a certifying statement,
that he had no knowledge of NCAA violations.”
Under the heading “Committee Rationale,” the COI report’s
ensuing three and a half pages about McNair acknowledged that
the enforcement staff, USC, and McNair disagreed about the
facts underlying the COI’s finding against McNair. (Boldface and
underscore omitted.)
As support for its finding that McNair violated the NCAA’s
ethical conduct legislation, the COI report relied exclusively on
the January 8, 2006 telephone call at 1:34 a.m. between McNair
and Lake (the late-night call). The operative statement
continued with:
“The [COI] nonetheless remains particularly troubled by
the two minute and 32 second telephone call from [Lake] to
[McNair] that took place at 1:34 a.m. on January 8, 2006.
[McNair] claimed that he did not remember the phone call and
denied [Lake’s] description of what was said. The committee
5
finds [Lake] credible in his report of the call. [Lake] said that he
phoned [McNair] to ask him to intercede with [Bush] and get him
to adhere to the agency agreement that he made with [Lake and
Michaels]. [Lake] said he also told [McNair] that he did not
intend to lose the money he had given [Bush] and his parents and
preferred not to go public with the matter and implicate [USC].”
The NCAA confirmed at trial that the late-night call was
the “linchpin” of the COI’s operative statement that McNair knew
of the benefits Lake’s agency gave Bush and lied about his
knowledge to USC and the NCAA.
The COI report listed facts to justify the COI’s doubt about
McNair’s credibility. Those facts were: (1) that McNair and Lake
were both friends with Faizon Love, a comedian and actor, who
grew up with Lake; (2) a photograph of McNair, Love, Lake, and
Michaels (the photograph), which was taken on Michaels’
telephone and which the NCAA did not believe McNair would
have agreed to without having at least been introduced to Lake;
(3) three one-minute telephone calls McNair made to Lake on
March 29, 2005, despite denying he ever knew or spoke to Lake,
and (4) the late-night call that served as the exclusive basis for
the finding against McNair. The COI found it implausible that
McNair would have stayed on the late-night call for two minutes
and 34 seconds with someone he claimed not to know.2
2 The NCAA also discussed a party in San Diego in 2005 for
Marshall Faulk, a running back in the National Football League,
which both McNair and Lake attended. However, the COI could
not make an unethical conduct finding against McNair based on
the information he provided about the San Diego event because of
unresolved discrepancies in witness reports. Before trial, the
parties agreed that they would put on very little evidence about
this San Diego event, for impeachment purposes only.
6
After discussing this evidence causing the NCAA to doubt
McNair’s credibility, the COI found that the late-night call
occurred “as described by” Lake (italics added), and therefore that
McNair violated NCAA ethical conduct legislation by providing
false and misleading information to the enforcement staff about
the call and about his knowledge of Lake’s activity. McNair
unsuccessfully appealed the findings to the Infractions Appeals
Committee.
As a result of the COI’s findings, the NCAA prohibited
McNair from engaging in recruiting activities or contacting
prospective student athletes for one recruiting season, from
April 29, 2011 to April 28, 2012. The NCAA did not prohibit
McNair from coaching. However, USC did not renew McNair’s
contract. McNair had difficulty finding another college or
professional coaching job and was initially reduced to coaching at
a local high school.
IV. McNair’s lawsuit
McNair sued the NCAA. The complaint alleged that the
NCAA’s false and malicious statements that McNair was
unethical and had committed unethical acts damaged his
reputation and ruined his career as a college football coach by
making him toxic to his then employer and to any potential
future college employers.
As noted, this lawsuit has already come before this court
three times, resulting in two published opinions.3 By trial, only
two of the seven causes of action alleged in the complaint
remained, one for defamation to be tried by a jury, and one for
declaratory relief to be tried by the court.
3 See footnote 1, ante, at page 2.
7
V. The evidence adduced at trial of the late-night call
A. Lake’s interview
The NCAA enforcement staff did not interview Lake early
in the investigation because Lake had been jailed for violating
terms of his probation for an earlier felony conviction. After 18
months of negotiations, Lake agreed to one interview with the
enforcement staff. Lake did not testify at trial. Instead, the jury
heard a recording and received a transcript of Lake’s interview,
conducted in November 2007 by NCAA Enforcement Staff
employee Richard Johanningmeier and staff member Angie
Cretors.
Asked whether McNair had any reason to believe that Bush
was involved with him and Michaels, Lake, who was not under
oath, responded, “Oh, he knew he was, . . . [¶] . . . [j]ust because,
you know, the whole situation, sports company, Reggie buying
the car, the room, there’s too any coincidences.” Lake told the
NCAA interviewers, “I know I told [McNair] because I wanted
him to know that Reggie was involved and try to let him in on
some action.” Lake also told the enforcement staff that he called
McNair a couple of times, including once in January 2006 to get
his money back. The telephone records show only one call from
Lake to McNair, the late-night call. Later, Lake could not
recollect telling McNair that Bush had ownership of the agency.
Focusing particularly on the late-night call that formed the
basis of the operative statement that McNair “had knowledge” of
the improper benefits and the agency relationship, the following
was said in Lake’s interview:
“RJ [Johanningmeier]: Well let me ask you this one, too,
Lloyd, on, uh, January 8th, 2006, at 1:34 [a.m.], there’s a call,
McNair call to you for two minutes and 32 seconds.
8
“LL [Lake]: What time was that?
“RJ: This is January 8th, 2006, it’s at 1:34 [a.m.], and it’s a
call, uh, McNair --
“AC [Cretors]: Coach doesn’t understand why people are
calling at 1:34.
“RJ: -- McNair makes a call to you at 2:32 [sic]. I was
asleep at that time --
“LL: Yeah.
“RJ: -- personally, but, but in your case --
“LL: I think that was like, that was like him trying to
resolve it, you know, and like [Bush is] wrong, he should make it
right and basically don’t implement [sic] the school.
“RJ: Because this, this is 2006 we’re talking about.
“LL: Yeah, that’s when I went to jail, that’s when
everything started falling apart, I mean, it fell apart.
“RJ: What can you tell us that you specifically recall about
that conversation with him?
“LL: Uh, just telling about [Bush] and all, he knew about
the money he took, he knew that he had an agreement and --
“AC: . . . McNair indicated to you in the telephone
conversation that he was aware that [Bush] took money --
“LL: I mean, he knew --
“AC: -- from you?
“LL: -- yeah bec [sic], he knew Reggie took money from me.
There’s no doubt he knew about that.
“RJ: And why do you say that?
“AC: Yeah, we need to know why you, why you believe that
[McNair] knew that?
“LL: ‘Cause he was around a lot and, you know, it’s like he
watched me get them guys, his friends, hotel rooms, [Bush] told
9
me he knew about certain things he was doing but he’s cool. You
know what I mean? It’s like basically through [Bush] --
“AC: [Bush] said he --
“LL: -- ‘cause I told [Bush] you shouldn’t be having the, no,
he’s cool, the coach, that’s my, he’s my friend. He’s not -- ”
(Italics added.)
The enforcement staff had the telephone records of both
McNair and Lake, which showed that the late-night call was
initiated by Lake, not by McNair. Cretors testified that Lake
adopted the mistake and gave a motivation to McNair for calling
him when McNair did not make the telephone call. Cretors
testified she was initially skeptical of Lake because of his
criminal history. She explained that Lake was not covered by the
cooperative principle and was under no obligation to talk to the
NCAA. The enforcement staff did not interview Michaels. The
record contains no testimony from Bush.
B. McNair’s interview
The NCAA enforcement staff interviewed McNair in
September 2006 while he was an assistant football coach at USC.
McNair did not retain an attorney because he did not think he
needed one. He told the enforcement staff that he had next to no
contact with Bush outside of practices and games, and he did not
recall meeting or speaking to Michaels. Asked whether he had
ever met Lake, McNair responded, “ ‘Not to my knowledge.’ ”
McNair stated, “I don’t ever recall talking to Lloyd Lake in my
life.”
A second interview of McNair by the enforcement staff
occurred three months after Lake’s interview, in February 2008.
As he was not told he was under investigation, McNair did not
retain counsel. Johanningmeier asked McNair whether he
10
remembered the two minute and 32 second telephone call at 1:32
a.m. with Lake on January 8, 2005. McNair stated he did not
remember that call, which had occurred in 2006. Trying to
recollect it, McNair explained that in January 2005, after the
Orange Bowl Championship, he could have been on the road
recruiting. Realizing that they had gotten the year of the late-
night call wrong, the enforcement staff considered reinterviewing
McNair using the date of 2006 instead of 2005, and giving
McNair the context of the call so he might better remember.
However, the enforcement staff decided not to interview McNair
again. The NCAA did not base its unethical conduct finding on
this interview.
C. The COI hearing
At the close of its hearing, held over three days in 2010, the
COI began deliberations and made various findings concerning
USC, but was unable to reach a determination about McNair.
To make a finding against an institution such as USC, the
NCAA had to find either a loss of institutional control or that an
employee knew about a rules violation and failed to report it.
Some voting members of the COI expressed difficulty with the
interviews of McNair and Lake. One called the Lake interview
“choppy;” one said the McNair interview was “botched” because
the dates were wrong; another said the record was “recklessly
constructed”, and one said the investigation had “fallen short.”
One member observed that Lake even had difficulty recalling
McNair’s name until the enforcement staff prompted him. Some
members noted that the question was whether McNair actually
knew about Lake’s agency and the benefits Lake gave Bush,
which would make lies out of McNair’s denials to the
investigators. One member found no evidence that McNair was
11
personally involved or had specific knowledge of any wrongdoing.
Nonetheless, the COI ultimately agreed to the operative
statement as written.
D. McNair’s trial testimony
At trial, McNair testified about the evidence the COI report
cited as showing his lack of credibility, namely, the photograph,
the three calls, and the late-night call.
As for the photograph, McNair testified that throngs of
people would come to downtown Los Angeles after a Saturday
USC football game and wanted to see celebrities. McNair would
bring along his friend Faizon Love. McNair has posed for so
many pictures that he could not remember the photograph in
particular.
Telephone records showed McNair made three one-minute
calls to Lake over a 17-minute period on October 29, 2005.
McNair testified that Bush was hosting the number-one high-
school recruit in the country, but Bush’s cellphone was running
out of battery and so he gave McNair a different number to use to
reach him. Telephone records revealed that the number belonged
to Lake. McNair learned that Bush had left the recruit alone in a
downtown Los Angeles hotel room. In an effort to locate Bush,
McNair made three quick calls to the number Bush gave him and
assumed at trial that he reached Bush on the third try. McNair
recalled the events of October 29, 2005 because the recruit did
not sign with USC after being left alone that night.
The late-night call was the only one Lake made to McNair.
McNair testified that to the best of his knowledge, he had never
met Lake. As late as trial, McNair could not remember what the
late-night call was about. McNair explained that he would have
remembered the call had Lake related his agency relationship
12
with Bush. In McNair’s words, USC had “the most-high profile
team in the country” back then and “everything we did was . . .
news.” Had Lake told McNair about the improper benefits, “that
would have been a profound phone call”; it “would have
threatened everything we had worked for,” and so he would have
remembered it.
McNair did not learn about the agency relationship or the
improper benefits Bush received from Lake during the night of
the three calls or during the late-night call. McNair testified he
first learned when it was announced on the news.
VI. The jury finds in favor of the NCAA
The jury heard the testimony of members and employees of
the NCAA and McNair, among others. The jury also had, inter
alia, the photograph, the telephone records, the COI report, and
the transcript of the Lake interview.
Initially, the jury was deadlocked at a vote of eight to four.
The trial court then learned that one of the jurors had a language
issue that made it difficult to fully participate in the
deliberations. That juror was removed by the court and replaced
with an alternate. Soon thereafter, the jury returned a nine-to-
three defense verdict finding that the NCAA’s statements about
McNair were not false.
VII. The declaratory relief judgment
In his seventh cause of action, McNair sought a declaration
that the NCAA’s rules and regulations, as written and as applied
to McNair, were arbitrary, capricious and in violation of all
notions of fairness and good faith, and asked that they be
stricken. After the jury verdict, the trial court entered a
declaratory judgment in favor of McNair. The court found that
13
the “Show‐Cause Order” provisions in the NCAA bylaws under
which McNair was penalized, and which were a substantial factor
in his suffering continuing harm, “are void in California as they
constitute an unlawful restraint on engaging in a lawful
profession pursuant to Cal. Business and Professions Code
section 16600.” (Boldface omitted.)
VIII. The new trial motion
McNair moved for a new trial of the defamation cause of
action on the grounds of the insufficiency of the evidence to
justify the verdict (Code Civ. Proc., § 657, subd. (6)),4 the
disqualification of a juror on the basis of an irregularity in the
proceeding (§ 657, subd. (1)), jury misconduct (§ 657, subd. (2)),
and error in law (§ 657, subd. (7)). The trial court granted
McNair’s motion for new trial on all proffered grounds and
ordered a new trial. The NCAA timely appealed from both the
declaratory judgment and the new trial order.
DISCUSSION
I. The new trial order.
The NCAA contends that the new trial order was error. We
discern no abuse of discretion in the order granting the new trial
motion on the ground of insufficiency of the evidence to justify the
jury verdict. (§ 657, subd. (6).)
A. Standard of review
“ ‘The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion
4All further statutory references are to the Code of Civil
Procedure.
14
clearly appears. This is particularly true when the discretion is
exercised in favor of awarding a new trial, for this action does not
finally dispose of the matter.’ ” (Simers v. Los Angeles Times
Communications LLC (2018) 18 Cal.App.5th 1248, 1275.) As
established by the Supreme Court in Lane v. Hughes Aircraft Co.
(2000) 22 Cal.4th 405, 412 (Lane), an order granting a new trial
motion under section 657 for insufficiency of the evidence to
justify the verdict “ ‘must be sustained on appeal unless the
opposing party demonstrates that no reasonable finder of fact
could have found for the movant on [the trial court’s]
theory.’ [Citation.] Moreover, ‘[a]n abuse of discretion cannot be
found in cases in which the evidence is in conflict and a verdict
for the moving party could have been reached . . . .’ [Citation.] In
other words, ‘the presumption of correctness normally accorded
on appeal to the jury’s verdict is replaced by a presumption in
favor of the [new trial] order.’ ”
“The only relevant limitation on this discretion is that the
trial court must state its reasons for granting the new trial, and
there must be substantial evidence in the record to support those
reasons.” (Lane, supra, 22 Cal.4th at p. 412.)
The NCAA contends that we should not apply the
deferential standard of review delineated in Lane. It quotes from
section 657 which prohibits a new trial on the ground of
insufficiency of the evidence to justify the verdict “unless after
weighing the evidence the court is convinced from the entire
record, including reasonable inferences therefrom, that the court
or jury clearly should have reached a different verdict or
decision.” (Italics added.) Citing County of Riverside v. Loma
Linda University (1981) 118 Cal.App.3d 300, the NCAA argues
that the statement of decision here did not utilize the word
15
clearly in ruling that “the jury should have answered question 3
‘YES,’ ” with the result that rather than deferring to the trial
court’s ruling, we must independently examine the evidence on
which the jury relied. The contention is unavailing.
In County of Riverside v. Loma Linda University, supra,
118 Cal.App.3d 300, the trial court told the jury at the conclusion
of trial that it disagreed with the jury’s finding on the existence of
a joint venture but denied a new trial motion brought on that
ground. (Id. at p. 322.) In affirming the denial of a new trial, the
appellate court stated simply, “the judge did not say that he
thought the jury ‘clearly’ should have reached a different verdict.
The fact that he said he would have ruled differently had he been
deciding the case does not indicate an abuse of discretion.” (Ibid.)
While the failure to use the word clearly may have justified the
denial of a new trial motion, the absence of the word clearly does
not undermine the grant of a new trial when, as explained in
Lane, supra, 22 Cal.4th at page 412, the trial court has stated its
reasons for granting the new trial, and substantial evidence
supports those reasons.
As the NCAA implicitly acknowledges by citing Oakland
Raiders v. National Football League (2007) 41 Cal.4th 624, the
appellate court independently reviews the record only when the
trial court fails to provide a statement of reasons; otherwise we
apply the Lane standard. (Id. at pp. 636, 640–641.) In Oakland
Raiders, the trial court’s statement of decision did not specify any
reasons for its decision to grant a new trial on the basis of juror
misconduct. (Id. at p. 632.) The Supreme Court explained that
the statement of reasons required by section 657 “should be
specific enough to facilitate appellate review and avoid any need
for the appellate court to rely on inference or speculation.” (Id. at
16
p. 634.) In the absence of a sufficiently specific statement of
reasons, the applicable standard of review is independent
judgment rather than abuse of discretion. (Id. at p. 640.)
Here the order for new trial contained a lengthy statement
of reasons that is not vitiated by the omission of the word clearly.
Spanning four and one-half, single-spaced pages, the statement of
reasons properly discussed the evidence, the credibility of
witnesses, the weight of the evidence, and the trial court’s
rationale for finding “several material ways” in which the COI
report’s operative statement was false. The court then used
stronger language than the word clearly, ruling that it was
“convinced from the entire record, including reasonable inferences
therefrom, that the jury should have answered question 3 ‘YES.’ ”
(Italics added.) Addition of the word clearly would have been
redundant. The statement of reasons manifestly met the
Oakland Raiders requirement and so we apply the abuse of
discretion standard outlined in Lane.
Under the Lane standard of review, we “ ‘defer to the trial
court’s resolution of conflicts in the evidence if the decision is
supported by substantial evidence and reverse only if there is no
reasonable basis for the court’s decision or the decision is based
on a legal error. [Citations.] [¶] An order granting a new trial
“will not be disturbed unless a manifest and unmistakable abuse
of discretion clearly appears.” ’ ” (Johnson & Johnson Talcum
Powder Cases (2019) 37 Cal.App.5th 292, 336–337.) “An abuse of
discretion occurs if, in light of the applicable law and considering
all of the relevant circumstances, the court’s decision exceeds the
bounds of reason and results in a miscarriage of justice.”
(Fassberg Construction Co. v. Housing Authority of City of Los
Angeles (2007) 152 Cal.App.4th 720, 763.) This means that the
17
“well-known rules” governing review of orders granting or
denying a new trial motion “are designed to affirm the trial
court’s ruling.” (David v. Hernandez (2014) 226 Cal.App.4th 578,
581.) Affirmance is more likely when the trial court grants a new
trial. (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d
1495, 1506.) Under the operative standard of review, so “ ‘ “long
as a reasonable or even fairly debatable justification under the
law is shown for the order granting the new trial, the order will
not be set aside.” ’ ” (Johnson & Johnson, at p. 337.)
B. The new trial order was not an abuse of trial court
discretion.
The jury found in special verdict question Nos. 1 and 2,
that the NCAA made statements of fact to third persons who
reasonably understood that the statements were about McNair.
Thus, the basis for the defense verdict was the jury’s nine to
three no vote on question No. 3, “With respect to the statements
for which you answered Yes in Question 2, were any of the
statements false?”
The NCAA acknowledges that the late-night call was the
“linchpin” on which it sanctioned McNair, and the only evidence
of the content of the late-night call was the Lake interview.
Comparing the operative statement to the transcript of Lake’s
interview, the court found that the operative statement’s
summary of the late-night call was “false in at least the following
ways:” (1) it falsely stated who initiated the call; (2) it falsely
related the purpose Lake ascribed to the call; and (3) it falsely
stated that McNair and Lake discussed the agency agreement
and improper benefits during the late-night call. Therefore, the
court found the operative statement did not “paraphrase” the
Lake interview, but was “a fictional account of the Lake version”
18
of the late-night call that was the impetus for the sanctions
imposed on McNair.
The statement of reasons focused on the credibility,
admissibility, and weight of the evidence. On the one hand the
trial court found McNair “to be a credible witness.” On the other
hand, the court observed that Lake did not testify at trial, and
that the transcript of Lake’s interview was inadmissible, as it
was not given under oath, it contained hearsay, and at times
double hearsay, and it was only admitted to show the basis for
the operative statement. The court called Lake’s interview
answers “unclear and unresponsive to the point of being
unreliable,” and “impossibly vague.” Therefore, the court
concluded that McNair’s denial that he had knowledge of Lake’s
payoffs to Bush “was not credibly rebutted or impeached” and so
the NCAA’s evidence about what was said in the late-night phone
call was insufficient to justify the verdict.
We discern no abuse of discretion. The NCAA
acknowledges that the only support for the operative statement’s
finding that McNair “had knowledge” of NCAA violations was the
late-night call, the so-called “linchpin.” The only evidence
adduced about what was said during the late-night call was the
transcript of Lake’s interview. Viewing the transcript along with
the inferences the trial court drew according to the required rules
(see Lane, supra, 22 Cal.4th at p. 412), the court reasonably
found it did not support the operative statement.
The NCAA’s brief focuses only on the first two of the trial
court’s reasons for finding falsity and on the court’s observation
that Lake’s interview was sloppy. The NCAA argues the late-
night call occurred and so whether Lake said he called McNair or
vice versa, whether Lake wanted McNair to enforce an agency
19
agreement or tell Bush to return the improper benefits to Lake,
and the fact that the court would have interviewed Lake
differently, are “inconsequential points” and a “red herring” that
do not undercut the jury’s finding.5
However, the transcript of the Lake interview supports the
trial court’s findings. Contrary to the operative statement, it was
Johanningmeier, not Lake, who said “McNair makes a call to you
[Lake].” The significance of this incorrect assertion is that in
response, Lake, who did not appear to remember the call,
attributed a motive to McNair for calling—knowledge of the
agency and benefits—when McNair had not made the call.
Cretors acknowledged this at trial. As the court reasonably
observed, “McNair could have had no purpose in making an
unmade phone call.” Indeed, Lake appeared to be guessing at the
late-night call’s topic, stating, “I think that was like, that was
like him trying to resolve it.”
Far from being inconsequential, these points—who made
the late-night call, and the purpose of the call—constitute core
elements of the statement of reasons because they are the
5 McNair argues that our opinion in McNair II, which
rejected these same arguments, is law of the case to which we are
bound. In that earlier appeal, we affirmed the denial of the
NCAA’s special motion to strike McNair’s libel cause of action
(§ 425.16) on the ground, in part, that McNair provided evidence
demonstrating “prima facie that the operative statement could
reasonably be interpreted as implying a provably false assertion
of fact.” (McNair II, supra, B245475.) Law of the case does not
help McNair. That doctrine applies only to appellate courts’
decisions on issues of law; it does not apply to questions of fact
(People v. Barragan (2004) 32 Cal.4th 236, 246), such as whether
McNair proved at trial that the operative statement was false.
20
evidence for the operative statement’s assertion that McNair
knew about the improper benefits and agency agreement. Lake
gave an unresponsive and vague answer to the question whether
McNair had indicated in the late-night call that he knew that
Bush was taking money: “I mean, he knew.” And, although Lake
said that McNair “knew,” he did not base this statement on
anything that was said during the late-night call, but on
assumption drawn from events that did not occur during the late-
night call. When asked directly why he believed McNair knew,
Lake responded that the reason was that McNair was “around a
lot” and “watched [Lake] get them guys, his friends hotel rooms,”
“basically through Reggie.” (Italics added.) In fact, Lake ended
by giving a hearsay response: “Reggie told me he knew.” From
this transcript, the trial court reasonably inferred its third falsity
finding: namely, that contrary to the operative statement, Lake
did not state that he and McNair discussed the improper benefits
and agency agreement during the late-night call.
More important, however, apart from the trial court’s
finding that the Lake interview failed to give substantive support
for the operative statement’s assertions, the weight the court
ascribed to the evidence along with the trial court’s evidentiary
findings, are fatal to the NCAA’s challenge to the new trial order.
The court found McNair’s denials that he knew of the improper
benefits and agency agreement to be credible. In contrast it gave
no evidentiary weight to Lake’s interview. Finding Lake’s
answers to be unclear, unreliable, speculative, vague, and so
unresponsive that they would have been stricken had they been
made in court, the statement of reasons concluded that the
interview—the only evidence of the contents of the late-night
call—was “without evidentiary value to support” the operative
21
statement, and that “no reasonable trier of fact could have found
that” the operative statement’s assertions about McNair were
true based on Lake’s interview. We cannot reassess the weight
the trial court accords the evidence (Armstrong v. Svoboda (1966)
240 Cal.App.2d 472, 473), and cannot say that the trial court’s
assessment of the evidence was unreasonable. And, the NCAA
raises no challenge on appeal to the court’s evidentiary rulings.
Lake was unsworn, was not subject to the cooperative principle,
gave hearsay responses (Bush “told me he knew”), and was
frequently interrupted by the interviewers so that it is difficult to
ascertain what question he was responding to. Cretors was
initially skeptical of Lake because he was not subject to the
cooperative principle. Without support from Lake’s interview,
the trial court reasonably found there was no “credible basis for
the jury to have found” the statements “were other than false.”
The result of the credibility assessment, along with the
weight the court gave to, and the inferences it derived from, the
evidence pursuant to section 657, is inescapable: McNair’s
credible denials render false the operative statement’s assertions
that he knew about the NCAA violations, and so McNair carried
his burden at trial to prove falsity. (See CACI No. 1701;
Industrial Waste & Debris Box Service, Inc. v. Murphy (2016)
4 Cal.App.5th 1135, 1156.) The NCAA failed to rebut this
evidence because it relied solely on Lake’s vague, unresponsive,
unreliable, and inadmissible interview responses, that in any
event did not substantively support the operative statement.
The NCAA contends that the trial court failed to account
for former CACI No. 1729, the substantial truth instruction given
to the jury. That instruction “ ‘absolve[s] a defendant even if she
cannot “justify every word of the alleged defamatory matter; it is
22
sufficient if the substance of the charge be proved true,
irrespective of slight inaccuracy in the details.” ’ ” (Reed v.
Gallagher (2016) 248 Cal.App.4th 841, 860–861.) The NCAA
points to elsewhere in the interview transcript—not mentioned in
the statement of reasons—in which Lake said he called McNair a
couple of times, and once in January 2006 to “get this resolved,
just get my money back and make it right.” Relying on
Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 216, the
NCAA insists that where some evidence in the record supports
the verdict, the court was “not entitled” to reverse simply because
it would have found contrary to the jury, that there was no
evidence to justify the verdict.
The argument misapplies the standard of review. It has
long been the law that the trial court ruling on a motion for new
trial “sits . . . as an independent trier of fact” (Neal v. Farmers
Insurance Exchange (1978) 21 Cal.3d 910, 933), or “ ‘ “as a
thirteenth juror,” ’ asking whether ‘ “the weight of the evidence
appears to be contrary to the jury’s determination” ’; in so doing,
the court is free to ‘ “disbelieve witnesses, reweigh the evidence,
and draw reasonable inferences therefrom contrary to those of the
trier of fact.” ’ ” (Licudine v. Cedars-Sinai Medical Center (2016)
3 Cal.App.5th 881, 900, italics added.) The trial court detailed its
reasons for according Lake’s interview—the only evidence of the
content of the late-night call—no evidentiary weight. As the
record supports that finding, the trial court reasonably concluded
there was no evidence for the operative statement’s assertion
that McNair “had knowledge” of the NCAA violations and
therefore no evidence to support the jury verdict.
The NCAA also argues that the statement of reasons
focused on “minor details” that “offered no insight into the COI
23
report’s key conclusion—that McNair had committed improper
conduct by lying to NCAA investigators about his relationship
with Lake.” (Italics added.) The NCAA lists the photograph and
the three telephone calls on March 29, 2005 to show that Lake
and McNair interacted, and argues that McNair’s defamation
claim “hinged on whether the jury believed that McNair had lied
to NCAA investigators when he claimed that [he] had never
known or spoken to Lake.” (Italics added.)
As an initial matter, McNair did not deny outright knowing
Lake; he denied recalling ever speaking to or meeting the man.
That testimony goes to McNair’s credibility, which under the
procedural posture here is a question for the thirteenth juror, and
which in any case does not shed light on McNair’s “knowledge of”
the NCAA violations. Moreover, McNair’s testimony, credited by
the trial court, showed the superficiality of the above-referenced
interactions with Lake. McNair made three one-minute calls to a
number Bush gave him to locate Bush who had abandoned a
recruit, and McNair could not remember the photograph in
particular given so many photographs were taken after USC
football games, especially of his friend and celebrity Love. Nor
does the fact that Love grew up with Lake reveal what McNair
knew.
More to the point, however, the question for the jury to
resolve was not whether McNair lied about having a
“relationship,” known, spoken to, or interacted with, Lake.
Rather, as some of the COI members recognized, the issue was
whether McNair knew about Lake’s agency and the benefits he
gave Bush and violated NCAA legislation by lying about that
knowledge and failing to report that knowledge to USC. No
amount of circumstantial evidence about interactions between
24
McNair and Lake proved to the trial court what they spoke about
or what McNair knew such that it would support the operative
statement’s finding that he did know. That the two men may
have spoken, may have had a celebrity friend in common, and
posed for the same photograph are manifestly not evidence that
McNair “had knowledge of” the agency and improper benefits,
which is the only way his denials would violate NCAA rules.
The trial court abuses its discretion in ruling on a new trial
motion only if there is no reasonable basis for its ruling or the
court committed legal error. (Johnson & Johnson Talcum
Powder Cases, supra, 37 Cal.App.5th at p. 336.) The NCAA has
failed to demonstrate an abuse of discretion.
II. The declaratory judgment
It is well-established that an order granting a new trial
vacates the entire judgment (Pacific Corporate Group Holdings,
LLC v. Keck (2014) 232 Cal.App.4th 294, 302), with the result
that the portions of the judgment that are not related to the new
trial order must await review in an appeal from the final
judgment. (Id. at p. 305.) In its reply brief, the NCAA
acknowledges that we may consider the merits of its appeal from
the declaratory judgment if we reverse the new trial order. As we
conclude that the new trial order must be affirmed, we have no
jurisdiction to consider the NCAA’s challenge to the declaratory
judgment.
25
DISPOSITION
The order is affirmed. The National Collegiate Athletic
Association to bear the costs of appeal.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
EGERTON, J.
26