Rall v. Tribune 365, LLC

          APPEAL from orders of the Superior Court of Los Angeles County No. BC613703. Joseph R. Kalin, Judge. Affirmed.

          Roger A. Lowenstein; Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for Plaintiff and Appellant.

          Davis Wright Tremaine, Kelli L. Sager, Rochelle Wilcox, Dan Laidman, Diana Palacios; Jeff Glasser, Los Angeles Times Communications LLC for Defendants and Respondents.

          Jassy Vick Carolan, Jean-Paul Jassy; Nikki Moore and David Snyder, for California News Publishers Association and First Amendment Coalition as Amici Curiae on behalf of Defendants and Respondents.

          GRIMES, J.

         SUMMARY

         Plaintiff Frederick Theodore Rall III, a political cartoonist and blogger, sued Los 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 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 (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, 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 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.”

         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 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]

         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' 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 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 any phone message from police, ” but acknowledged receiving the letter from then-Chief Parks.

         The Times report stated that “Pringle also asked [plaintiff] to explain his apparently friendly exchange with Durr after the citation was issued, in which he asked the officer to recommend a restaurant in the area. [¶] [Plaintiff] said he had been ‘traumatized' by the incident and likened his behavior to that of ‘rape victims calling their rapist back, and-you know, like, days later-and wanting to get back together.' ”

         The Times report then describes plaintiff's actions after the Pringle interviews and its own further investigative activities. It stated:

         “[[P]laintiff] has attacked The Times in Web posts and media interviews, accusing the paper of knuckling under to pressure from the LAPD to discredit a critic.” Plaintiff “contend[ed] that the LAPD transcript [was] incomplete and that faintly audible background noises bolster his account. [Plaintiff] said he had Post Haste Digital, a Los Angeles company that does sound work for the entertainment industry, enhance the recording. [Plaintiff] maintains that on the enhanced version, two women can be heard midway through the recording complaining that [plaintiff] was handcuffed. [Plaintiff] said the women were part of a crowd of people who protested his treatment. He has published a transcript that he says is consistent with this claim.” He and a co-author “wrote that six unidentified ‘audio experts'-including both amateurs and professionals, according to the post-said they believed the recording had been spliced in places.”

         The Times report states that Commander Andrew Smith, an LAPD spokesman, “said LAPD experts later enhanced the recording and could not hear anyone complain about handcuffs. They found no indication that the tape was spliced or otherwise altered, he said.” In addition:

         “The Times had the recording analyzed by two leading experts in audio and video forensics.” One of these, Edward J. Primeau, “said that voices heard in the background on [plaintiff's] enhanced version are mostly unintelligible, and that he did not detect any mention of handcuffs. He said [plaintiff's] transcript was ‘not accurate.' ” Mr. Primeau also analyzed the LAPD recording and “concluded ‘beyond a reasonable degree of scientific certainty' that the tape had not been spliced or otherwise edited.” The second expert, Catalin Grigoras, “said his analysis detected no reference to handcuffs”; that “a man and a woman can be heard speaking in the background at one point, but only a few of their words are intelligible”; they “appear to be having a conversation unrelated to the jaywalking stop”; and “ ‘[i]t is obvious the police officer is not part of that conversation.' ”^[3]

         The Times report concluded by stating The Times “continues to have serious questions about the accuracy of [plaintiff's] blog post”; that “[n]o version of the recording, including [plaintiff's] enhanced one, supports the cartoonist's allegations that Durr was violent, hostile, rude and belligerent”; and that “Goldberg, the editorial page editor, said that in light of all the available information, The Times stands by its note to readers and its judgment that [plaintiff's] May 11 blog post should not have been published.”

         2. The Complaint

         On March 14, 2016, plaintiff filed his complaint against The Times, various related companies, and four individual defendants.^[4] Plaintiff alleged causes of action for defamation, defamation per se, and intentional infliction of emotional distress against all defendants. He also alleged, against the corporate defendants, causes of action for violation of Labor Code section 1050 (blacklisting) and section 1102.5 (retaliation for disclosing information about an employer's violation of law), breach of express oral contract, breach of implied-in-fact contract, and wrongful termination in violation of public policy. (We refer to the corporate entities collectively as The Times.)

         Plaintiff's defamation claims alleged seven “false statements” in the note to readers, and 25 “falsities” in the Times report. (We recite in the margin the 10 statements plaintiff continues on appeal to assert are “false statements.”)^[5] The complaint alleged the cited statements are false for various reasons: the LAPD did not provide the records to The Times; The Times “does not actually have the audiotape, ” but rather an unauthenticated digital copy of the original analog microcassette tape of very poor quality, and subsequent enhancement “confirms [plaintiff's] version of the events, not the LAPD's”; “the evidence was unreliable”; and there are no discrepancies in his accounts of the incident. The complaint also asserts that statements that the recording and other evidence raised ...