California Court of Appeals, Fourth District, First Division
from an order of the Superior Court of San Diego County
Super. Ct. No. 37-2015-00011951- CU-MC-CTL, Eddie C.
Sturgeon, Judge. Affirmed.
Leibold McClendon & Mann and John G. McClendon for
Plaintiff and Appellant.
Dunn & DeSantis, Higgs Fletcher & Mack, Douglas M.
Butz and Joy L. Homze for Defendants and Respondents.
Sheppard, Mullin, Richter & Hampton, Guylyn R. Cummins
and Valerie E. Alter for Real Parties in Interest and
press is a foundation of citizen participation in government
because the press informs people about issues of public
concern and provides a place for debate about public issues.
A lawsuit filed primarily to chill the valid exercise of free
speech is called a SLAPP suit and, if without merit, such an
action may be dismissed early under Code of Civil
Procedure section 425.16 in what is commonly
known as an anti-SLAPP motion.
anti-SLAPP case, investigative newsource (inewsource), an
independent, nonprofit journalism organization, entered into
contracts with KPBS, San Diego's public radio and
television station, to gather and produce news stories with
and for KPBS, in exchange for the right to use KPBS offices,
media equipment, and related news facilities. KPBS is a
department of San Diego State University (SDSU), and
inewsource and KPBS have jointly created hundreds of news
February 2015 inewsource began publishing articles critical
of attorney Cory Briggs. For example, one was entitled
"Cory Briggs' Land Deals Raise Ethical Legal
Questions" and another was called "San Diego
Attorney's Environmental Lawsuits Could Be Tainted by
Conflict of Interest."
inewsource published about a dozen more critical stories
about Briggs, San Diegans for Open Government (SDOG)-an
entity inewsource reported is controlled by Briggs-sued
inewsource, along with its founder, Loretta Hearn, and also
SDSU, California State University (CSU), and San Diego State
University Research Foundation (SDSURF).
gist of SDOG's complaint is the contracts between KPBS
and inewsource violate statutory prohibitions on self-dealing
involving public funds because Hearn was allegedly
influencing both sides of the transaction-for SDSU as a
faculty member, and for inewsource as its executive director.
SDOG also alleges inewsource and Hearn misappropriated the
names KPBS and SDSU.
SDOG's lawsuit is based on the exercise of their
constitutionally protected speech rights and lacked merit,
Defendants brought anti-SLAPP motions. The court
granted the motions.
appeals, contending the anti-SLAPP statute does not apply
because (1) its lawsuit is a public interest lawsuit, exempt
from the anti-SLAPP law under section 425.17, subdivision
(b); and (2) the exception to that exemption for media
defendants under section 425.17, subdivision (d) is
inapplicable because its lawsuit has "nothing to do with
stopping news reporting" but is instead directed to
stopping "self-dealing by a public employee."
SDOG asserts that if the anti-SLAPP statute applies, the
order should be reversed because (1) its lawsuit is not
directed at protected activity; and (2) even if it is, SDOG
established a probability of prevailing.
affirm. Reporting news is protected speech. (Hunter v.
CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1521
(Hunter).) News stories addressing issues of public
interest do not arise out of thin air. They often require
newsgathering using offices, internet access, studios, and
production services. Providing office space and related
newsgathering facilities in exchange for investigative news
stories furthers protected speech. SDOG's lawsuit is
therefore squarely within the anti-SLAPP statute, which
protects not only speech, but also "conduct in
furtherance of the exercise of the constitutional right of...
free speech in connection with a public issue or an issue of
public interest." (§ 425.16, subd. (e), italics
reject SDOG's assertion that the anti-SLAPP statute does
not apply because its lawsuit targets unlawful self-dealing,
not protected speech. SDOG's argument improperly
conflates distinct issues of conduct and motive. In
determining whether the anti-SLAPP statute applies, the
appropriate focus is on the alleged injury-producing conduct
(here, the KPBS-inewsource contracts), and not the
defendant's alleged wrongful motive for engaging in that
conduct (here, alleged self-dealing). (Hunter,
supra, 221 Cal.App.4th at pp. 1521-1523.)
SDOG's reliance on the public interest exemption to the
anti-SLAPP statute in section 425.17, subdivision (b) is
unavailing. That exemption does not apply to actions such as
this one against news media engaged in newsgathering conduct.
(§ 425.17, subd. (d)(1); Major v. Silna (2005)
134 Cal.App.4th 1485, 1496-1497 (Major).)
SDOG's claims fail on the merits because SDOG offered no
admissible evidence to support its claims. SDOG's attempt
to fill the evidentiary void by relying on allegations in its
verified complaint is insufficient as a matter of law.
(Brodeur v. Atlas Entertainment, Inc. (2016) 248
Cal.App.4th 665, 679 (Brodeur).)
AND PROCEDURAL BACKGROUND
The News Media Parties
has been a professional journalist since 1974. In 2009 she
founded inewsource, which creates investigative news stories
on public issues.
a media entity operating as a public service of SDSU. KPBS,
with broadcast facilities on the SDSU campus, delivers news
and entertainment programming through television, radio, and
is a nonprofit corporation and a separate legal entity from
SDSU. For over 34 years, SDSURF has provided KPBS with
financial accounting, tax reporting, and administrative
KPBS began publishing inewsource news stories. Reporters for
these two organizations also began working together on
stories of public interest.
The 2012 Agreement for Collaboration Between Inewsource
fall of 2011, KPBS remodeled its newsroom and began a nightly
news television show. Hearn asked KPBS's station manager,
Deanna Mackey, about moving inewsource into the remodeled
KPBS newsroom because inewsource was looking for a reliable
audience for its investigative news. Hearn's proposal
interested KPBS, which was looking for more investigative
KPBS and inewsource entered into a contract under which KPBS
agreed to provide inewsource newsroom space to allow
inewsource reporters to work closely with KPBS editors,
reporters, and producers on collaborative work (the 2012
Agreement). In exchange, inewsource agreed to give
KPBS all of its news content for distribution on radio,
television, and the Internet. KPBS characterizes this
relationship with inewsource as a "partnership"
that contemplates "joint story telling."
the 2012 Agreement, KPBS agreed to provide inewsource with
offices, furniture, studios and production areas, telephone
and internet connections, and news gathering equipment. KPBS
also agreed to invite inewsource employees to daily news
exchange, inewsource agreed to provide KPBS with 10
"substantial data driven stories" during the term
and one "Watchdog feature per month, " plus a
"[w]eekly data brief on a topic of interest to KPBS'
audience." Inewsource also agreed to provide reporters
to KPBS and to provide KPBS access to its databases.
did not competitively bid the 2012 Agreement. Mackey,
KPBS's station manager who participated in drafting the
2012 Agreement, stated such a contract would "never be
subject to open bidding" because "content is
qualitative" and "[p]artnerships between news
organizations require trust...." Mackey stated KPBS
"only partners with news organizations whose accuracy
and content have proven to be trustworthy, such as
inewsource." Vince Petronzio, associate general manager
for business and financial affairs at KPBS, similarly stated
that "KPBS does not solicit open bids for content-based
contracts." He explained, "In fact, because content
is unique and qualitative, it would never be subject to open
bidding.... KPBS receives significant value from its
partnership with inewsource because inewsource stories
enhance the coverage that KPBS can provide to its
audience." He added, "The partnership between KPBS
and inewsource is definitely a value-for-value
declaration, Hearn asserted she negotiated the 2012 Agreement
only on behalf of inewsource. Mackey and Suzanne Marmion,
director of news and editorial strategy for KPBS, negotiated
the 2012 Agreement for KPBS. Neither Mackey nor Marmion has
any financial interest in inewsource. In 2012, although Hearn
occasionally volunteered as a guest lecturer for SDSU's
school of journalism, she was not employed by SDSU and held
no executive or managerial role at SDSU.
declaration states she has never been a KPBS board member or
KPBS employee and has "never been in a position to
influence [the KPBS] decision-making process or outcome in
any way." She has never been a tenured or tenured-track
SDSU professor, nor a department head, advisory board member,
committee member, director, officer, or department
chairperson. Hearn has never been employed by SDSURF.
The 2015 Extension and Lease
inewsource and KPBS extended the 2012 Agreement (the 2015
extension). They also entered into a new lease
(2015 lease) under which KPBS leased office space, conference
rooms, studios, and production areas to inewsource for its
reporters to use "for the benefit of securing
investigative news content for KPBS." Rent under the
2015 lease was only one dollar; however, KPBS's station
manager stated KPBS received "significant value"
from this agreement because "inewsource stories enhance
the coverage that KPBS can provide to its audience."
states she negotiated the 2015 extension and 2015 lease only
on behalf of inewsource. Mackey and Marmion negotiated on
behalf of KPBS. In 2015 Hearn was an adjunct professor of
journalism at SDSU, teaching a three-unit class. SDSU paid
Hearn for her teaching time at its standard rate, and she
received no other benefits from SDSU. Hearn's declaration
states she did not occupy any position of control or
decision-making authority with SDSU, SDSURF, or KPBS.
Nature of KPBS and Inewsource Collaboration
and KPBS have jointly created and distributed more than 285
stories. In most, inewsource reports the news, with input
from KPBS editors and using KPBS videographers. In other
cases, KPBS reporters do the reporting and inewsource
reporters edit. Occasionally, KPBS and inewsource collaborate
to jointly report stories. In all these situations,
inewsource reporters work closely with KPBS editors and
producers on content for KPBS.
Inewsource Articles About Briggs
February 2015 inewsource began publishing uncomplimentary
stories about Briggs. For example, one was entitled,
"San Diego Attorney's Environmental Lawsuits Could
Be Tainted by Conflict of Interest." There, inewsource
reported that Briggs's wife, Sarichia Cacciatore, was
listed as a project manager on a contract her employer had
with a government entity at the same time Briggs was suing
that entity over environmental matters. Briggs responded by
stating on his website, "My wife has a job, and I have a
job. We don't talk about or share client confidences, and
we take measures to avoid creating any conflicts. There
isn't anything illegal, unethical, or even unusual about
next day, in an article entitled, "Document Links
Briggs' Wife to His Law Business, " inewsource
reported that Cacciatore was listed as vice president of
Briggs's law firm at the same time she worked on projects
for government agencies Briggs was suing.
February 25, 2015, inewsource reprinted a letter Briggs
posted on his website, defending his conduct and stating,
"My clients aren't wealthy corporations. There are
people who have to fight and need a lawyer to represent them
but often can't pay right away. I still fight for
March 3, 2015, inewsource published three more articles about
Briggs. These were entitled "Behind the Briggs
Investigation, " "Helix: Briggs' Wife Did Not
Disclose VP Role in His Law Firm, " and "Contested
Transcript of San Diego Attorney Cory Briggs' Wife
these articles, inewsource reported that Cacciatore was
employed by an environmental company that has done work for
the City of San Diego (the City)-and that Briggs sued the
City regarding one of these projects. Inewsource reported,
"Records released Monday confirm Cory Briggs' wife
was vice president of the Briggs Law Corp[oration] for the
past 'twenty years, ' which means she was an officer
of the law firm he used to sue the [City] at the same time
she worked for a company on contract with the city."
Briggs responded, stating Cacciatore was vice president of
his law corporation "for reasons having nothing to do
with running the firm and everything to do with things like
March 10, 2015, inewsource reported that Briggs had sued the
City about at least one project Cacciatore worked on
March 30, 2015, Cacciatore and Briggs wrote to KPBS "to
give you notice of our demand, and to make that demand, for
correction and retraction of false, inaccurate, and/or
misleading reporting that may have been disseminated by
KPBS...." Inewsource and KPBS responded, stating it was
"unaware of any false fact" in its story.
April 7, 2015, inewsource reported that the environmental
firm employing Cacciatore had agreed to pay the City $143,
000 to resolve the potential conflict of interest claim.
Earlier, Briggs wrote, "'There isn't anything
illegal, unethical or even unusual'" about
Cacciatore's employment and relationship to Briggs.
later, inewsource published another article about Briggs,
reporting Cacciatore played a "key role" in an
environmental review of a project near the Mexican border.
The article states Briggs filed a lawsuit alleging
inadequacies in that project's analysis of biological
impacts, and Cacciatore-vice president of Briggs's law
firm-was the project's biologist. Inewsource also
reported that Briggs had sued "at least 15 government
agencies" that had contracted with the environmental
firm employing Cacciatore. The article states Briggs operates
through nonprofit corporations, including SDOG, which are
actually run by Briggs's associates, including his
cousin. The article states, "Experts in legal ethics
have told inewsource the connection between Briggs and [his
wife] is a 'horrible' and 'problematic'
conflict of interest." The article explains:
lawsuits against the [City] have cost taxpayers a significant
amount of money over the years. But there was an undisclosed
conflict of interest behind at least two of them, posing
ethical and legal issues that recently resulted in a taxpayer
April 9, 2015, inewsource published Cacciatore's demand
for correction and retraction, along with inewsource's
lawyer's point-by-point response, refuting Briggs's
assertions. The same day, SDOG filed the instant action.
However, SDOG did not serve Hearn with the lawsuit until June
Inewsource Publishes Another ...