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Kevin Moreau v. the Daily Independent

January 8, 2013

KEVIN MOREAU,
PLAINTIFF,
v.
THE DAILY INDEPENDENT,
DEFENDANT.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ON MOTION TO STRIKE (Doc. 8)

INTRODUCTION

Plaintiff Kevin Moreau ("Moreau") filed this action against Defendant The Daily Independent ("TDI") for libel and "intentional tort" relating to an article TDI published on the motorcycle accident that resulted in the death of Moreau's son Staff Sergeant Kirk Collado ("Collado"). Before the Court is TDI's motion to strike Moreau's complaint pursuant to California's anti-Strategic Lawsuit Against Public Participation ("anti-SLAPP") statute, Cal. Code Civ. Proc. § 425.16. Moreau did not file an opposition. For the reasons discussed below, the Court GRANTS TDI's motion to strike Moreau's complaint.

BACKGROUND

A.Relevant Facts

On September 19, 2011, Moreau's son Collado was riding his motorcycle when he collided with a car in Ridgecrest, California. TDI reporter John Ciani went to the scene of the accident to gather information and spoke with Ridgecrest Police Department Sergeant Jed McLaughlin.

The next day, September 20, Ciani was notified by the Kern County Sheriff's Office-Coroner Section that Collado did not survive his injuries. Ciani contacted Sgt. McLaughlin for further detail, and Sgt. McLaughlin stated that "Alcohol and drugs may have played a role in the collision." Sgt. McLaughlin stated that this information was based on the Kern County Coroner's preliminary toxicology report which showed that Collado had drugs and alcohol in his system when he was hospitalized following the accident.

On September 21, 2011, TDI published in print and on its online website an article by Ciani on the fatal motorcycle collision ("September 2011 Article"). The article included Sgt. Jed McLaughlin's statement that "Alcohol and drugs may have played a role in the collision."

On or around March 8, 2012, Moreau telephoned Ciani about the September 2011 Article. Moreau explained that he was Collado's father and that, although the initial toxicology report tested positive for methamphetamine, the final coroner's report indicated no presence of drugs. Moreau asked Ciani to prepare an article as a tribute to Collado reflecting that drugs ultimately were not involved in the collision even though alcohol was involved. Ciani agreed to draft the article. On March 9, 2012, Moreau emailed Ciani with the proposed language of the article and a picture of Collado in military uniform.

A few days later, Ciani spoke with Captain Paul Wheeler and Sgt. Mike Myers of the Ridgecrest Police Department about Collado's death. Sgt. Myers confirmed that the Police Department initially believed drugs and alcohol may have played a role in the collision because the initial report released by the Kern County Coroner showed Collado had both drugs and alcohol in his system.

Ciani drafted the front-page tribute article. TDI published the tribute article on March 21, 2012 with Collado's picture and the language Moreau requested ("Tribute Article"). Moreau later contacted Ciani to express his gratitude for the Tribute Article.

Moreau contacted TDI Managing Editor Cheeto Barrera ("Barrera") three times by telephone, on March 20, 2012, March 26, 2012, and in mid-April of 2012, and once in a letter, dated May 15, 2012, to request that TDI remove the September 2011 Article from the Google search engine. Barrera informed him that TDI accurately published the September 2011 Article based on the information the Ridgecrest Police Department provided on September 20, 2011, which was days before the coroner conducted its final report. Barrera explained that he had no control over Google and thus could not remove the September 2011 Article, but would ensure that TDI published a tribute to Collado on the front-page of both its written and online editions with Collado's picture. Barrera also revised the internet version of the September 2011 Article to reflect much of the content in the Tribute Article. Barrera did not respond to the May 15 Letter.

Subsequently, Moreau sent TDI a "Demand Letter/Notification of Pending Law Suit" dated August 14, 2012 ("Demand Letter"), demanding $26 million in damages for alleged libel in the September 2011 Article. In particular, Moreau objected to TDI's publication of the statement by Sgt. McLaughlin that drugs and alcohol may have played a role in the collision. On August 22, 2012, Barrera contacted the Ridgecrest Police Department to verify the accuracy of the September 2011 Article. Ridgecrest Police Department Chief Ronald Strand confirmed that Sgt. McLaughlin's statement was accurate at the time of its publication based on Collado's initial toxicology report from the Kern County Coroner.

GateHouse Media, Inc.'s General Counsel Polly Grunfeld Sack sent Moreau a letter dated September 5, 2012, stating that the September 2011 Article was protected by privilege and not actionable under California law and offered to work with Moreau ...


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