MEMORANDUM OPINION AND ORDER ON
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Doc. # 31
This is an action for damages by Plaintiff Eugene Forte ("Plaintiff") against defendant Tommy Jones ("Defendant"), presumably in his individual capacity. Currently before the court is Defendant's motion for summary judgment on Plaintiff's Second Amended Complaint ("SAC"), which alleges one claim pursuant to 42 U.S.C. § 1983, and state claims for defamation and intentional infliction of emotional distress.*fn1 The SAC was originally filed in the Stanislaus County Superior Court and was removed by Defendant on May 5, 2011. Subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND UNDISPUTED MATERIAL FACTS
This action arises out of two separate events; the first occurring on May 5, 2007, and the second occurring on March 19, 2008. The first event occurred at a May Day parade in Los Banos that was attended by both Plaintiff and Defendant. At the time, Defendant was Mayor of the City of Los Banos. Plaintiff was in attendance with a friend of his, Clinton Galloway ("Galloway"). Plaintiff is a journalist whose on-line publication, "Badger Flats Gazette," contains primarily articles written by Plaintiff and aimed primarily at exposing malfeasance by public officers. Plaintiff approached Defendant who was in conversation with another person at the time and requested an interview. After excusing himself from the conversation with the other person, Defendant and Plaintiff walked away "a few feet." Doc.# 32 at 3:2. Defendant alleges that he and Plaintiff were standing "a few feet out of hearing distance from" a group of people that included Los Banos City Council Members Mike Villalta, Joe Sousa, Tom Faria, Anna Ballati, and City Manager Steve Rath. Doc. # 32 at 3:2-4. Plaintiff, in his opposition to Defendant's motion agrees that he and Defendant were standing "a few feet out of hearing distance" of the aforementioned Los Banos city officials. Doc. # 36 at 5:9-11. Plaintiff alleges some of the officials were "looking toward" Plaintiff and Defendant as they conversed. Id. at 12-13.
The parties agree that Plaintiff asked Defendant how Defendant "felt his progress as mayor was going for the City of Los Banos." Doc. # 32 at 3:6-7. As some point during the conversation between Plaintiff and Defendant, Defendant alleges that Defendant "had heard that Plaintiff was a dangerous member of the Ku Klux Klan." Doc. # 32 at 3:8-9 (italics added). Plaintiff disputes this statement in that he alleges Defendant said that he "knew for a fact" that Plaintiff was a dangerous member of the Ku Klux Klan. There is no dispute that Plaintiff is not a member of the Ku Klux Klan nor has he any sympathies whatsoever for what are commonly assumed to be Klan views. It appears that Defendant alleges that he had heard the rumor of Plaintiff's Klan ties from Plaintiff's nephews while Plaintiff alleges that no such statements were ever made by them to Defendant. For purposes of this opinion, the court will assume that Defendant's Klan statement was factually unfounded.
Upon hearing Defendant voice his contention that Plaintiff was a dangerous member of the Ku Klux Klan, Plaintiff called Galloway to the conversation and asked Defendant to repeat the statement to Galloway. Upon doing so, Galloway, an African-American, said that he had known Plaintiff for over thirty years and that Galloway "was absolutely positive Plaintiff was not a member of the Ku Klux Klan." Doc. # 32 at 3:16-17. Plaintiff then alleges the following:
Due to the vehemence with which [Defendant] had accused [Plaintiff] of being a dangerous member of the KKK, [Plaintiff] realized and believed that [Defendant] had been telling people in the community the same thing. In an attempt to immediately mitigate any damage to his reputation, [Plaintiff] later that day introduced Galloway to Supervisor O'Banion and Fire Chief Chet Guintini as his friend and discussed what Jones had said.
Doc. # 36 at 6:4-9. Defendant does not dispute the foregoing and alleges, without dispute, that both O'Banion and Guintini responded to Plaintiff's allegation that Defendant had accused Plaintiff of Klan membership with words to the effect of "are you kidding me?" Doc. # 32 at 3:21-27.
Defendant alleges that he "did nto tell anyone other than [Plaintiff] and Galloway that Defendant heard [Plaintiff] was a member of the Ku Klux Klan." Defendant's UMF # 17. Plaintiff disputes this by alleging that Defendant "also told Corey Pride and others, and implied such in the televised City Counsel meeting on March 19, 2008." Doc. # 37 at ¶ 17. It is not disputed that Plaintiff filed a claim for defamation on or about June 7, 2007, based on the allegedly defamatory statement by Defendant on May 5, 2005. Plaintiff's opposition to Defendant's Motion does not mention Corey Pride and there is no indication of what may have been said between Defendant and Pride or when such conversation is to have taken place. Plaintiff alleges that sometime after his claim for defamation was filed with the City of Los Banos, an article concerning the claim and the nature of the relationship between Plaintiff and Defendant was reported in the local newspaper. A copy of the article referenced by Plaintiff is appended at pages 78 and 79 of Doc. # 37. The court has examined the newspaper report and concludes it reports the fact of Plaintiff's claim against City of Los Banos and reports an abbreviated version of the substance of that claim that includes the allegation that Defendant told people that [Plaintiff] is "'a dangerous member of the Ku Klux Klan.'" Id.
The televised City Council meeting of March 19, 2008, mentioned in the paragraph above was the other event that forms the factual backdrop to Plaintiff's claims, and in particular to his second claim for relief. Apparently for some time prior to the meeting Plaintiff had been investigating loans by a real estate developer named Greg Hostetler to Defendant and had published one or more articles regarding the same in the Badger Flats Gazette. In "count two" of Plaintiff's defamation claim for relief, Plaintiff alleges that he an a group of other citizens concerned about the loan issue were in attendance at the City Counsel meeting and some, including Plaintiff confronted Defendant on that issue during the portion of the meeting that is reserved for public comments. At paragraph 34 of the complaint, Plaintiff alleges:
Later, during that same [March 19 City Council] meeting, Defendant Jones addressed the audience and stated, "There were time if you try to do certain things you have been lynched with a rope. This time I got lynched with words." Plaintiff submits that [Defendant's] use of the word "lynched" is a continuation of his defamatory accusation that Plaintiff Forte is a dangerous member of the Ku Klux Klan.
In Plaintiff's second claim for relief for infliction of emotional distress, further elaborates on the City Council meeting of March 19 by alleging that Plaintiff and a group of 20 other citizens signed a "Notice of Intent to Recall Mayor Jones" based on the alleged relationship between Defendant and Hostetler. It was apparently Plaintiff's intent to announce the Notice of Intent at the meeting during the period of time normally allotted for public comment at such meetings. Plaintiff alleges that the normal time allotted for the comments of any one individual is five minutes. Plaintiff alleges that he was shut off after about two minutes and fifteen seconds and then was forcibly ejected from the meeting room and building to the cheers and jeers of Defendants "supporters." Plaintiff alleges he suffered emotional distress as a result.
Defendant alleges, and Plaintiff does not dispute that Plaintiff did not file a separate claim regarding the events that transpired at the City Council meeting on March 19, 2008. Plaintiff contends instead that he was "not required to file a claim for every additional allegation of fact or circumstance that occurs that are related to the initial claim." Doc. # 37 at ¶ 25. Defendants also assert, and Plaintiff does not dispute, that Plaintiff did not allege his claim for violation of civil rights in violation of 42 U.S.C. § 1983 until the filing of ...