California Court of Appeals, Second District, Eighth Division
[256
Cal.Rptr.3d 779] APPEAL from orders of the Superior Court of
Los Angeles County. Joseph R. Kalin, Judge. Affirmed. (Los
Angeles County Super. Ct. No. BC613703)
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[Copyrighted Material Omitted]
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[Copyrighted Material Omitted]
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COUNSEL
Roger
A. Lowenstein; Jeff Lewis Law, Jeffrey Lewis, Rolling Hills
Estates, and Sean C. Rotstan, for Plaintiff and Appellant.
Davis
Wright Tremaine, Kelli L. Sager, Rochelle Wilcox, Dan
Laidman, Diana Palacios, Los Angeles; Jeff Glasser, Los
Angeles Times Communications LLC for Defendants and
Respondents.
Jassy
Vick Carolan, Jean-Paul Jassy, Los Angeles; Nikki Moore and
David Snyder, Yorba Linda, for California News Publishers
Association and First Amendment Coalition as Amici Curiae on
behalf of Defendants and Respondents.
OPINION
GRIMES,
J.
Page 642
SUMMARY
Plaintiff Frederick Theodore Rall III, a political cartoonist
and blogger, sued Los [256 Cal.Rptr.3d 780] 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
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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, 249
Cal.Rptr.3d 569, 444 P.3d 706 (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.
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,
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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 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 [256
Cal.Rptr.3d 781] 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 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."
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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.
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 [256
Cal.Rptr.3d 782] 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]
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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 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’ [256 Cal.Rptr.3d
783] 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,
questioned the officer who ticketed [plaintiff], listened to
the recording and tried repeatedly to reach [plaintiff].
Then-Police
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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 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
...