| San Diego Education Report |
| ... |
| Bloggers take aim at city governments -- and hit home Some websites are watchdogs, others are just scurrilous... By Jonathan Abrams, Times Staff Writer The anonymous blogger posted documents on his website that, he said, showed that Mayor Maryetta Ferre and Mayor Pro Tem Lee Ann Garcia were beholden to developers putting up big-box stores such as Lowe's. "We need to recall them now," "Grandpa Terrace" fumed a year ago. "We don't want more traffic, more crime, dayworkers just to bring in some pocket change, when the cost to the city will go up to combat the problems brought by these types of development." His rants helped fuel a recall effort last year against the two council members. Although the campaign ultimately failed, his blog was another example of the growing influence of citizen journalists roiling communities across Southern California, many of which rarely are covered by newspapers or other traditional media outlets... It may only be a matter of time before bloggers start to have a major influence in local politics and policymaking... In Grand Terrace, the recall effort fell about 500 signatures short of the 1,506 needed to trigger the election. A citizen-driven group, buoyed by the blog, collected signatures at a Stater Bros. market and mailed petitions to residents. "For years the city of Grand Terrace tried to keep residents in the dark," said resident Jo Springfield, a strong supporter of the recall effort. "The blog enlightened many residents to start asking questions and going to meetings." Several bloggers interviewed by The Times insisted on anonymity, saying they feared a backlash from city officials. All said they were residents of the area they report on and got involved because their community did not receive enough coverage from the traditional media. "We want our words to stand on our own, and with anonymity, the only way someone can judge us is by what we write," said Publius of the Foothill Cities News Blog, who takes his pseudonym from the Roman whose name was used by Alexander Hamilton, John Jay and James Madison when they wrote the Federalist Papers... The Foothill Cities Blog, which covers several cities in the San Gabriel Valley, was the first to report that Assemblywoman Nell Soto (D-Pomona) was absent from the Capitol for 25 days because of pneumonia. It was later reported that she still collected more than $20,000 in per diem pay... But the praise is mixed with criticism aimed at Pomona officials. The site drew the ire of administrators in May after posting that its city manager was forced to step down � which city officials said was untrue... Pomona City Atty. Arnold M. Alvarez-Glasman sent a cease-and-desist letter to the website, ordering it to remove the post. "While the City of Pomona strongly supports an individual's First Amendment Rights � it is difficult to respond to anonymous fabrications such as those published by you in your web-site publication," he wrote. The website took down the post but enlisted free-speech attorney Jean-Paul Jassy to respond. "In many ways, these kinds of sites are at the cutting edge and more modern vision of commentary," Jassy said. "The Constitution and the U.S. Supreme Court placed a high premium on making sure freedom of speech is protected, especially when it comes to commenting on public officials." It is the anonymity that separates the bloggers from professional journalists, said Michael Parks, director of the journalism program at USC's Annenberg School for Communication. "Journalists need to accept responsibility for their reporting and comments, and that provides for them to be identified," said Parks, a Pulitzer Prize-winning reporter who is a former editor of the Los Angeles Times. "Anonymous blogs are similar to writing something up, not signing it and putting it on a bulletin. It's more social commentary than anything." Although blogs are protected under the 1st Amendment, they are vulnerable to libel lawsuits, said Erwin Chemerinsky, a Duke University constitutional law professor. They present unique 1st Amendment challenges. "They cannot have defamatory speech any more than a traditional media type; however, the difficulty with an anonymous blog is who is actually doing the blogging?" he said. "And if you ask a server to take it down, what happens if they refuse?" Two years ago, the Delaware Supreme Court ruled that an elected official who makes a defamation claim against an anonymous blogger must have substantial evidence to support the claim. Otherwise the lawsuit could not proceed and the blogger would remain masked. A similar case has yet to be heard in California. The California Supreme Court, however, ruled last year that Internet service providers and bloggers cannot be held liable for posting defamatory material written by someone else. The case was brought by two doctors who said they were defamed by a San Diego activist for victims of problem breast implants who called one doctor "arrogant and bizarre" and the other "a bully and a Nazi." In Claremont, former Mayor Diann Ring threatened the Claremont Insider blog with a defamation suit. The blog has criticized moves by the city's landscaping and lighting district assessments and targeted former city officials, including Ring, for contracting with a water agency outside the city... For all the furor the blogs create, city officials could take a cue from Fontana Mayor Mark Nuaimi. Nuaimi routinely posts on a blog in his city and said he welcomed it as a way to communicate with citizens... Los Angeles Times, July 23, 2007 |
THOMAS C. EVANS, Plaintiff and Respondent,
v.
LINDA A. EVANS, Defendant and Appellant
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE STATE OF CALIFORNIA
Filed 5/12/08D051144 (Super. Ct. No. GIC881162)
APPEAL from an order of the Superior Court of San Diego County, Patricia Cowett, Judge. Reversed and remanded. Linda A. Evans, in pro. per.,
for Defendant and Appellant.
Harrison Patterson & O'Connor and Harry W. Harrison for Plaintiff and Respondent.
Thomas Evans (Thomas), a deputy sheriff, sued his former wife, Linda Evans (Linda), and Linda's mother, alleging numerous causes of action,
including harassment, defamation, and breach of privacy.
The court then granted Thomas's motion for preliminary injunction, and entered an order enjoining Linda and her mother from: (1) publishing
"false and defamatory statements" about Thomas on the Internet; (2) publishing "confidential personal information" about Thomas on the
Internet; and (3) contacting Thomas's employer (the San Diego County Sheriff's Department) "regarding [Thomas]" except to call "911 to report
criminal conduct."
Linda appeals from the order, raising numerous contentions.
We conclude the preliminary injunction was overbroad and constituted an invalid prior
restraint before trial. We thus reverse the order and remand for further hearing.
Our reversal should not be interpreted to mean that a court lacks authority to enjoin certain speech and/or conduct. Before trial and upon a
proper showing, a court may prohibit a party from having contact with certain persons or from disclosing certain specified private information
under narrowly drawn circumstances. The order here, however, was not sufficiently tailored to satisfy constitutional standards. Likewise, after a
trial, a court may continue these prohibitions and may additionally prohibit a party from repeating statements determined at trial to be
defamatory. We reverse and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL SUMMARY1Thomas is a law enforcement officer with the San Diego County Sheriff's Department. He and Linda
were married in 1985, and separated in 1998. In 2002, the court entered a judgment dissolving the marriage. During the next five years, the
parties had substantial ongoing conflict over custody, child support and other issues. The family court has held numerous hearings, and those
hearings continue through the present time. In March 2007, Thomas filed a complaint against Linda, alleging harassment (Code Civ. Proc, §
527.6), slander and defamation, various common law torts, breach of privacy claims, and breach of contract. The gist of the allegations was that
Linda has engaged in a series of acts intended to harass Thomas and cause him severe emotional stress and injury to his reputation and
career. The complaint sought damages and equitable relief...
DISCUSSION In challenging the preliminary injunction, Linda raises numerous arguments. In Part I, we conclude the order must be reversed
because it is overbroad, vague, and an unconstitutional prior restraint before trial. In Part II, we briefly address two of Linda's additional
challenges to the preliminary injunction and find them to be without merit. In reaching these conclusions, we apply well-settled law applicable to
preliminary injunctions.
To show entitlement to a preliminary injunction, a plaintiff must prove a likelihood of prevailing on the merits, and that the harm to the plaintiff
from not granting the injunction outweighs the harm to the defendant if the injunction is issued pending trial. (Butt v. State of California (1992) 4
Cal.4th 668, 677-678.)
"The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on
one, the less must be shown on the other to support an injunction." (Ibid.) ...
v.
LINDA A. EVANS, Defendant and Appellant
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE STATE OF CALIFORNIA
Filed 5/12/08D051144 (Super. Ct. No. GIC881162)
APPEAL from an order of the Superior Court of San Diego County, Patricia Cowett, Judge. Reversed and remanded. Linda A. Evans, in pro. per.,
for Defendant and Appellant.
Harrison Patterson & O'Connor and Harry W. Harrison for Plaintiff and Respondent.
Thomas Evans (Thomas), a deputy sheriff, sued his former wife, Linda Evans (Linda), and Linda's mother, alleging numerous causes of action,
including harassment, defamation, and breach of privacy.
The court then granted Thomas's motion for preliminary injunction, and entered an order enjoining Linda and her mother from: (1) publishing
"false and defamatory statements" about Thomas on the Internet; (2) publishing "confidential personal information" about Thomas on the
Internet; and (3) contacting Thomas's employer (the San Diego County Sheriff's Department) "regarding [Thomas]" except to call "911 to report
criminal conduct."
Linda appeals from the order, raising numerous contentions.
We conclude the preliminary injunction was overbroad and constituted an invalid prior
restraint before trial. We thus reverse the order and remand for further hearing.
Our reversal should not be interpreted to mean that a court lacks authority to enjoin certain speech and/or conduct. Before trial and upon a
proper showing, a court may prohibit a party from having contact with certain persons or from disclosing certain specified private information
under narrowly drawn circumstances. The order here, however, was not sufficiently tailored to satisfy constitutional standards. Likewise, after a
trial, a court may continue these prohibitions and may additionally prohibit a party from repeating statements determined at trial to be
defamatory. We reverse and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL SUMMARY1Thomas is a law enforcement officer with the San Diego County Sheriff's Department. He and Linda
were married in 1985, and separated in 1998. In 2002, the court entered a judgment dissolving the marriage. During the next five years, the
parties had substantial ongoing conflict over custody, child support and other issues. The family court has held numerous hearings, and those
hearings continue through the present time. In March 2007, Thomas filed a complaint against Linda, alleging harassment (Code Civ. Proc, §
527.6), slander and defamation, various common law torts, breach of privacy claims, and breach of contract. The gist of the allegations was that
Linda has engaged in a series of acts intended to harass Thomas and cause him severe emotional stress and injury to his reputation and
career. The complaint sought damages and equitable relief...
DISCUSSION In challenging the preliminary injunction, Linda raises numerous arguments. In Part I, we conclude the order must be reversed
because it is overbroad, vague, and an unconstitutional prior restraint before trial. In Part II, we briefly address two of Linda's additional
challenges to the preliminary injunction and find them to be without merit. In reaching these conclusions, we apply well-settled law applicable to
preliminary injunctions.
To show entitlement to a preliminary injunction, a plaintiff must prove a likelihood of prevailing on the merits, and that the harm to the plaintiff
from not granting the injunction outweighs the harm to the defendant if the injunction is issued pending trial. (Butt v. State of California (1992) 4
Cal.4th 668, 677-678.)
"The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on
one, the less must be shown on the other to support an injunction." (Ibid.) ...
Defamation cases
| The Laconic Law Blog $3.5 Million Defamation Case Dismissed On Remand According to The VLW Blog, the Fairfax County Circuit Court has dismissed on remand the defamation claims of a former Raytheon executive who won one of the largest jury verdicts in Virginia in 2005. The VLW Blog reports: “Cynthia Hyland had been with defense contractor Raytheon Corporation for 21 years and served as a senior vice president prior to being fired in 2003 after the business unit she led lost money. In 2005, a Fairfax County jury awarded Hyland $3.5 million in a suit alleging the company president made defamatory remarks in Hyland’s performance evaluation. Fairfax Circuit Court Judge Arthur Vieregg reduced the $2 million punitive damage award to the statutory cap of $350,000, and the case went up on appeal. In March 2007, the Supreme Court of Virginia reversed Hyland’s $1.85 million award, saying that only two of the five allegedly defamatory statements cited by Hyland could support the jury verdict. The justices sent the case back for another look at the factual accuracy of statements relating to Hyland’s role in the bidding process for two government contacts and her team’s being “off plan” on their financial targets. Last month, Vieregg granted summary judgment for Raytheon and its president in Hyland v. Raytheon Technical Services, saying Hyland admitted that she oversaw or was the project manager for the two government contracts at issue and was responsible for identified financial losses.” One lesson for employers to take from this case is to be sure that supervisors understand that performance evaluations need to be truthful. While Raytheon ultimately escaped liability for defamation here, untruthful statements made in a performance evaluation with actual malice can result in liability for defamation. |
'Elated' nonlawyer triumphs
before appellate panel
In addition, the injunction on confidential personal
information was too vague, Haller wrote. She also
said that banning contact with the Sheriff's
Department was over-broad and unconstitutional.
By Greg Moran
San Diego UNION-TRIBUNE
May 15, 2008
There's an old saying in the law – that
representing yourself in court means
you have a fool for a client.
Don't tell that to Linda Evans.
[Maura Larkins comment: And don't tell
it to Stutz, Artiano Shinoff & Holtz, who
are representing themselves in their
defamation lawsuit against me, Stutz v.
Larkins.]
She not only represented herself, but
did so at the appellate court level.
The 50-year-old Jamul resident not
only won her appeal, but the bulk of
the unanimous opinion from the 4th
District Court of Appeal was certified
for publication
– meaning it can be cited as precedent
around the state.
Most of the thousands of decisions of the
appellate courts in the state are deemed
“unpublished,” meaning the decisions
apply only to that case and generally can't
be relied on elsewhere.
Only about 8 percent of the appellate court
decisions are deemed published.
“I'm absolutely elated,” Evans said. “I never
thought I would get it reversed.”
A self-represented litigant winning a case
and getting a published opinion is “a rare
event,” said Steve Kelly, the longtime clerk
for the appellate court.
Evans appealed an April 2007
injunction issued by Superior Court
Judge Patricia Cowett preventing her
from publishing allegedly false and
defamatory statements about her ex-
husband on the Internet or publishing any
“confidential personal information” about
him.
Her former husband, Thomas Evans, is a
San Diego County deputy sheriff. After the
couple's divorce, he had sued her for
harassment and defamation and sought
the injunction.
It was the latest in what the appellate court
characterized as “substantial ongoing
conflict” in the couple's bitter divorce, which
was finalized in 2002. They married in 1985
and separated in 1998.
Cowett's order also prevented Linda Evans
from contacting the San Diego County
Sheriff's Department except for calling 911
to report a crime.
Evans, who is unemployed and has applied
for disability payments, unsuccessfully
contested the injunction before Cowett,
representing herself while her husband
had a lawyer. She contended that the
injunction was an unconstitutional
prior restraint on her free-speech
rights, but Cowett disagreed and
issued the injunction.
At the appellate court, Evans used the
court's guide for self-represented people
and received help from lawyers at the
California Men's Center in San Diego,
which works on family law court issues, she
said.
In the decision, Justice Judith Haller
said the injunction was
“constitutionally invalid” and was too
vague and overly broad. Courts can't
prevent someone from uttering a
defamatory statement before a trial has
been held to determine whether the
statement is defamatory, she said.
In addition, the injunction on
confidential personal information was
too vague, Haller wrote. She also said
that banning contact with the Sheriff's
Department was over-broad and
unconstitutional.
Haller was careful to note that the court
wasn't ruling on the merits of the claims
Thomas Evans made in seeking the
injunction. Courts can issue such an
injunction, but only with a level of proof and
only if the injunction is narrowly drawn. The
matter was sent back to reconsider the
injunction in light of the appellate decision.
Harry Harrison, whose law firm represented
Thomas Evans, said the ruling was one of
“procedure over substance.” He said the
court relied heavily on a decision by the
state Supreme Court that came out after
the injunction was issued.
Among other things, that decision said
courts can prohibit people from making
defamatory statements, but only after a
trial.
Linda Evans still faces a trial on the lawsuit
and other legal issues. While it's a tough
road, she encourages others to followed
her lead.
“You have to take the initiative to fight for
your rights and your children's rights,” she
said.
Shaun Martin, a law professor at the
University of San Diego who writes a blog
on appellate rulings, said the ruling
reiterates that “injunctions against speech
are very disfavored.” Most free-speech
cases are certified for publication because
the issue is of such importance, he said.
before appellate panel
In addition, the injunction on confidential personal
information was too vague, Haller wrote. She also
said that banning contact with the Sheriff's
Department was over-broad and unconstitutional.
By Greg Moran
San Diego UNION-TRIBUNE
May 15, 2008
There's an old saying in the law – that
representing yourself in court means
you have a fool for a client.
Don't tell that to Linda Evans.
[Maura Larkins comment: And don't tell
it to Stutz, Artiano Shinoff & Holtz, who
are representing themselves in their
defamation lawsuit against me, Stutz v.
Larkins.]
She not only represented herself, but
did so at the appellate court level.
The 50-year-old Jamul resident not
only won her appeal, but the bulk of
the unanimous opinion from the 4th
District Court of Appeal was certified
for publication
– meaning it can be cited as precedent
around the state.
Most of the thousands of decisions of the
appellate courts in the state are deemed
“unpublished,” meaning the decisions
apply only to that case and generally can't
be relied on elsewhere.
Only about 8 percent of the appellate court
decisions are deemed published.
“I'm absolutely elated,” Evans said. “I never
thought I would get it reversed.”
A self-represented litigant winning a case
and getting a published opinion is “a rare
event,” said Steve Kelly, the longtime clerk
for the appellate court.
Evans appealed an April 2007
injunction issued by Superior Court
Judge Patricia Cowett preventing her
from publishing allegedly false and
defamatory statements about her ex-
husband on the Internet or publishing any
“confidential personal information” about
him.
Her former husband, Thomas Evans, is a
San Diego County deputy sheriff. After the
couple's divorce, he had sued her for
harassment and defamation and sought
the injunction.
It was the latest in what the appellate court
characterized as “substantial ongoing
conflict” in the couple's bitter divorce, which
was finalized in 2002. They married in 1985
and separated in 1998.
Cowett's order also prevented Linda Evans
from contacting the San Diego County
Sheriff's Department except for calling 911
to report a crime.
Evans, who is unemployed and has applied
for disability payments, unsuccessfully
contested the injunction before Cowett,
representing herself while her husband
had a lawyer. She contended that the
injunction was an unconstitutional
prior restraint on her free-speech
rights, but Cowett disagreed and
issued the injunction.
At the appellate court, Evans used the
court's guide for self-represented people
and received help from lawyers at the
California Men's Center in San Diego,
which works on family law court issues, she
said.
In the decision, Justice Judith Haller
said the injunction was
“constitutionally invalid” and was too
vague and overly broad. Courts can't
prevent someone from uttering a
defamatory statement before a trial has
been held to determine whether the
statement is defamatory, she said.
In addition, the injunction on
confidential personal information was
too vague, Haller wrote. She also said
that banning contact with the Sheriff's
Department was over-broad and
unconstitutional.
Haller was careful to note that the court
wasn't ruling on the merits of the claims
Thomas Evans made in seeking the
injunction. Courts can issue such an
injunction, but only with a level of proof and
only if the injunction is narrowly drawn. The
matter was sent back to reconsider the
injunction in light of the appellate decision.
Harry Harrison, whose law firm represented
Thomas Evans, said the ruling was one of
“procedure over substance.” He said the
court relied heavily on a decision by the
state Supreme Court that came out after
the injunction was issued.
Among other things, that decision said
courts can prohibit people from making
defamatory statements, but only after a
trial.
Linda Evans still faces a trial on the lawsuit
and other legal issues. While it's a tough
road, she encourages others to followed
her lead.
“You have to take the initiative to fight for
your rights and your children's rights,” she
said.
Shaun Martin, a law professor at the
University of San Diego who writes a blog
on appellate rulings, said the ruling
reiterates that “injunctions against speech
are very disfavored.” Most free-speech
cases are certified for publication because
the issue is of such importance, he said.
CRS/LII Annotated
Constitution First Amendment
Pfister92 the Court, after
expanding on First
Amendment grounds the
discretion of federal courts to
enjoin state court proceedings,
struck down as vague and as
... least of which are the Court's
subjection of defamation law to
First Amendment ... In United
States v. United States District
Court, 407 U.S. 297 (1972) ...
UNITED STATES DISTRICT
COURT DISTRICT OF
MASSACHUSETTS PAUL
MCMANN V. JOHN DOE
File Format: PDF/Adobe
Acrobat - Quick View
One district court in this circuit
has allowed the case to ....
broadcast media and striking
down an unconstitutionally
broad regulation of
cyberspace). .... figure
defamation cases. Anderson
v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). .... The
statement is so vague, that
attempting to judge its falsity,
...
United States v. Stevens (08-
769) | LII / Legal Information
Institute
The District Court sentenced
Stevens to thirty-seven months
of imprisonment. .... including
the “defamation” of religion
and depictions of criminal acts
in ... of free speech advocates
who view § 48 as an overly
broad and vague statute. ....
However, the United States
argues that several Supreme
Court cases held ...
Deciding communication law:
key cases in context
by Susan Dente Ross - 2004 -
Keefe, 402 US 415, 419
(1971). The District Court for
the Southern District ... [719]
The word "security" is a
broad, vague generality
whose contours should ...
...
Reno v. ACLU (1997)
The 1996 Communications
Decency Act was ruled
unconstitutional since it was
overly broad and vague in
its regulation of speech on the
Internet, and since it attempted
to regulate indecent speech,
which the First Amendment
protects.
UNITED STATES DISTRICT
COURT DISTRICT OF
COLORADO Case No. 04-B ...
Turner Broad. Sys., Inc., v.
FCC, 512 U.S. 622 (1994) . .....
Ryan, 806 P.2d 935 (Colo.
1991), and the hopelessly
vague and ambiguous
language of the ..... Hepps, of
course, was a case of civil
defamation, in which the
maximum penalty ...
Netlitigation | Background
Notes
In a second case interpreting
the CDA, Apollomedia Corp. v.
Reno, a three-judge panel of
the United States District Court
for the District of ... with an
intent to annoy was NOT
impermissibly broad and
vague in violation of the First
... was liable for defamatory
messages placed on its
service by a third party. ...
The Indiana Law Blog: Ind.
Decisions - Court of Appeals
issues 8 ...
Aug 21, 2009 ... Dugan first
contends that Komorowski's
statements are defamatory per
se. ... Finding that the statute is
not unconstitutionally vague as
...
indianalawblog.com/archives/...
/ind_decisions_c_1080.html -
State of Utah v. Ian Michael
Lake
Utah's Criminal Libel Statute is
Unconstitutionally Overbroad
and Vague. ... “Courts
uniformly have held criminal
defamation statutes
unconstitutional for ... For
example, we have consistently
allowed attacks on overly
broad statutes ...
www.acluutah.org/lakemotion.
htm -
#
RCFP: Criminal defamation
law upheld in Kansas cases
May 18, 2005 · A Kansas
criminal defamation law is not
unconstitutionally vague or
overly broad because the law
only punishes speech that can
be proven ...
www.rcfp.org/newsitems/index.
php?i=4233 - Cached - Similar
-
#
Deciding communication law:
key cases in context - Google
Books Result
by Susan Dente Ross - 2004 -
Law - 352 pages
[719] The word "security" is a
broad, vague generality whose
contours should not be
invoked to abrogate the
fundamental law embodied in
the First Amendment ...
books.google.com/books?
isbn=0805846980... -
#
Canada, R v Lucas
298, 299 and 300 of the Code
are not so vague that they
infringe s. ... This portion of the
defamatory libel scheme is too
broad. ... freedom of
expression, the lower will be
the level of constitutional
protection afforded to it. ...
www.hrcr.
org/safrica/expression/r_lucas.html -
Cached - Similar -
#
Concurring Opinions » Is the
Computer Fraud and Abuse
Act ...
Is the Computer Fraud and
Abuse Act Unconstitutionally
Vague? ... Since tort law is
common law, and is very
flexible, broad, and evolving
Human rights: group
defamation, freedom of
expression, and the law ...
by Thomas David Jones - 1998
- Political Science - 319 pages
Thus, the author's proposed
model statute, a true
defamation statute, ... The very
existence of these broad and
vague policy statements
creates a chilling ...
AETA 4: Animal Rights
Demonstrators Charged With
Unconstitutional ...
May 28, 2009 ... The AETA is so
broad and unclear it could be
used to suppress lawful
protests and ... chalking
defamatory comments on
public sidewalks, ... lawyers
say its language is so broad
and vague that it could be
easily used to ...
Constitution First Amendment
Pfister92 the Court, after
expanding on First
Amendment grounds the
discretion of federal courts to
enjoin state court proceedings,
struck down as vague and as
... least of which are the Court's
subjection of defamation law to
First Amendment ... In United
States v. United States District
Court, 407 U.S. 297 (1972) ...
UNITED STATES DISTRICT
COURT DISTRICT OF
MASSACHUSETTS PAUL
MCMANN V. JOHN DOE
File Format: PDF/Adobe
Acrobat - Quick View
One district court in this circuit
has allowed the case to ....
broadcast media and striking
down an unconstitutionally
broad regulation of
cyberspace). .... figure
defamation cases. Anderson
v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). .... The
statement is so vague, that
attempting to judge its falsity,
...
United States v. Stevens (08-
769) | LII / Legal Information
Institute
The District Court sentenced
Stevens to thirty-seven months
of imprisonment. .... including
the “defamation” of religion
and depictions of criminal acts
in ... of free speech advocates
who view § 48 as an overly
broad and vague statute. ....
However, the United States
argues that several Supreme
Court cases held ...
Deciding communication law:
key cases in context
by Susan Dente Ross - 2004 -
Keefe, 402 US 415, 419
(1971). The District Court for
the Southern District ... [719]
The word "security" is a
broad, vague generality
whose contours should ...
...
Reno v. ACLU (1997)
The 1996 Communications
Decency Act was ruled
unconstitutional since it was
overly broad and vague in
its regulation of speech on the
Internet, and since it attempted
to regulate indecent speech,
which the First Amendment
protects.
UNITED STATES DISTRICT
COURT DISTRICT OF
COLORADO Case No. 04-B ...
Turner Broad. Sys., Inc., v.
FCC, 512 U.S. 622 (1994) . .....
Ryan, 806 P.2d 935 (Colo.
1991), and the hopelessly
vague and ambiguous
language of the ..... Hepps, of
course, was a case of civil
defamation, in which the
maximum penalty ...
Netlitigation | Background
Notes
In a second case interpreting
the CDA, Apollomedia Corp. v.
Reno, a three-judge panel of
the United States District Court
for the District of ... with an
intent to annoy was NOT
impermissibly broad and
vague in violation of the First
... was liable for defamatory
messages placed on its
service by a third party. ...
The Indiana Law Blog: Ind.
Decisions - Court of Appeals
issues 8 ...
Aug 21, 2009 ... Dugan first
contends that Komorowski's
statements are defamatory per
se. ... Finding that the statute is
not unconstitutionally vague as
...
indianalawblog.com/archives/...
/ind_decisions_c_1080.html -
State of Utah v. Ian Michael
Lake
Utah's Criminal Libel Statute is
Unconstitutionally Overbroad
and Vague. ... “Courts
uniformly have held criminal
defamation statutes
unconstitutional for ... For
example, we have consistently
allowed attacks on overly
broad statutes ...
www.acluutah.org/lakemotion.
htm -
#
RCFP: Criminal defamation
law upheld in Kansas cases
May 18, 2005 · A Kansas
criminal defamation law is not
unconstitutionally vague or
overly broad because the law
only punishes speech that can
be proven ...
www.rcfp.org/newsitems/index.
php?i=4233 - Cached - Similar
-
#
Deciding communication law:
key cases in context - Google
Books Result
by Susan Dente Ross - 2004 -
Law - 352 pages
[719] The word "security" is a
broad, vague generality whose
contours should not be
invoked to abrogate the
fundamental law embodied in
the First Amendment ...
books.google.com/books?
isbn=0805846980... -
#
Canada, R v Lucas
298, 299 and 300 of the Code
are not so vague that they
infringe s. ... This portion of the
defamatory libel scheme is too
broad. ... freedom of
expression, the lower will be
the level of constitutional
protection afforded to it. ...
www.hrcr.
org/safrica/expression/r_lucas.html -
Cached - Similar -
#
Concurring Opinions » Is the
Computer Fraud and Abuse
Act ...
Is the Computer Fraud and
Abuse Act Unconstitutionally
Vague? ... Since tort law is
common law, and is very
flexible, broad, and evolving
Human rights: group
defamation, freedom of
expression, and the law ...
by Thomas David Jones - 1998
- Political Science - 319 pages
Thus, the author's proposed
model statute, a true
defamation statute, ... The very
existence of these broad and
vague policy statements
creates a chilling ...
AETA 4: Animal Rights
Demonstrators Charged With
Unconstitutional ...
May 28, 2009 ... The AETA is so
broad and unclear it could be
used to suppress lawful
protests and ... chalking
defamatory comments on
public sidewalks, ... lawyers
say its language is so broad
and vague that it could be
easily used to ...
Gilbert v. Sykes
Del Junco v. Hufnagel
Public figures in Schools
Public figure Anti-SLAPP
Free Speech
Whistle-blowers
Del Junco v. Hufnagel
Public figures in Schools
Public figure Anti-SLAPP
Free Speech
Whistle-blowers
FREEDOM OF SPEECH:
GENERAL
Virginia v. Hicks (2003)
Richmond could ban non-
residents from public
housing complexes if the
non-residents did not
have “a legitimate
business or social
purpose” for being there.
The trespass policy was
not overbroad and did
not infringe upon First
Amendment rights.
Ashcroft v. ACLU (2004)
The Child On-Line
Protection Act violated the
First Amendment because
it was overbroad, it
resulted in content-based
restrictions on speech,
and there were less-
restrictive options
available to protect
children from harmful
materials.
Watchtower Bible and
Tract Society v. Stratton
(2002)
City laws requiring permits for
political advocates going door to
door were unconstitutional
because such a mandate would
have a “chilling effect”
on political
communication.
Schenck v. United States
(1919)
Freedom of speech can be
limited during wartime. The
government can restrict
expressions that “would
create a clear and present
danger that they will bring
about the substantive evils
that Congress has a right to
prevent.”
Abrams v. United States
(1919)
The First Amendment did not
protect printing leaflets urging
to resist the war effort, calling
for a general strike and
advocating violent revolution
Debs v. United States (1919)
The First Amendment did not
protect an anti-war speech
designed to obstruct
recruiting.
Gitlow v. New York (1925)
The Supreme Court applied
protection of free speech to
the states through the due
process clause of the
Fourteenth Amendment.
Chaplinsky v. New Hampshire
(1942)
The First Amendment did not
protect “fighting words” which,
by being said, cause injury or
cause an immediate breach
of the peace.
West Virginia v. Barnette
(1943)
The West Virginia Board’s
policy requiring students and
teachers to recite the Pledge
of Allegiance was
unconstitutional. Reversing
Minersville v. Gobitas (1940),
the Court held government
cannot “force citizens to
confess by word or act their
faith” in matters of opinion.
United States v. O’Brien
(1968)
The First Amendment did not
protect burning draft cards in
protest of the Vietnam War as
a form of symbolic speech.
Tinker v. Des Moines (1969)
The Court ruled that students
wearing black armbands to
protest the Vietnam War was
“pure speech,” or symbolic
speech protected by the First
Amendment.
Brandenburg v. Ohio (1969)
The Supreme Court held that
the First and Fourteenth
Amendments protected
speech advocating violence
at a Ku Klux Klan rally
because the speech did not
call for “imminent lawless
action.”
Cohen v. California(1971)
A California statute
prohibiting the display of
offensive messages violated
freedom of expression.
Miller v. California (1973)
This case set forth rules for
obscenity prosecutions, but it
also gave states and localities
flexibility in determining what
is obscene.
Island Trees School District v.
Pico (1982)
The Supreme Court ruled that
officials could not remove
books from school libraries
because they disagreed with
the content of the books’
messages.
Bethel School District v.
Fraser (1986)
A school could suspend a
pupil for giving a student
government nomination
speech full of “elaborate,
graphic, and explicit sexual
metaphor.”
Texas v. Johnson (1989)
Flag burning as political
protest is a form of symbolic
speech protected by the First
Amendment.
R.A.V. v. St. Paul(1992)
A criminal ordinance
prohibiting the display of
symbols that “arouse anger,
alarm or resentment in others
on the basis of race, color,
creed, religion or gender” was
unconstitutional. The law
violated the First Amendment
because it punished speech
based on the ideas
expressed.
Reno v. ACLU (1997)
The 1996 Communications
Decency Act was ruled
unconstitutional since it was
overly broad and vague in its
regulation of speech on the
Internet, and since it
attempted to regulate
indecent speech, which the
First Amendment protects.
United States v. American
Library Association (2003)
The federal government
could require public libraries
to use Internet-filtering
software to prevent viewing of
pornography by minors. The
burden placed on adult
patrons who had to request
the filters be disabled was
minimal.
Virginia v. Black (2003)
A blanket ban on cross-
burning was an
unconstitutional content-
based restriction on free
speech. States could ban
cross burning with intent to
intimidate, but the cross
burning act alone was not
enough evidence to infer
intent.
FREEDOM OF SPEECH:
CAMPAIGN FINANCE
Buckley v. Valeo (1976)
“Reasonable restrictions” on
individual, corporate and
group contributions to
candidates were allowed;
limits on campaign
expenditures were
unconstitutional since these
placed “substantial and direct
restrictions” on protected
political expression.
Colorado Republican Federal
Campaign Committee v. FEC
(1996)
The Court ruled that
campaign spending by
political parties on behalf of
congressional candidates
could not be limited as long
as the parties work
independently of the
candidates.
McConnell v. Federal
Election Commission (2003)
Limitations on “soft-money”
contributions and political
advertisements were
acceptable infringements of
free speech because of the
government’s interest in
preventing corruption or the
appearance of corruption in
elections.
FREEDOM OF SPEECH:
COMMERCIAL
Virginia Board of Pharmacy v.
Virginia Citizens Consumer
Council (1976)
A pharmacy had the First
Amendment right to advertise
prices.
Linmark v. Willingboro (1977)
A town prohibition on “For
Sale” and “Sold” signs was
unconstitutional. The ban was
unreasonable restriction on
the flow of commercial
information.
United States v. United Foods
(2001)
A law forcing cooperatives of
mushroom growers to pay
advertising fees was “contrary
to First Amendment
principles” as a form of
compelled speech.
FREEDOM OF THE PRESS
Rex v. Zenger (1735)
The colony of New York tried
publisher John Peter Zenger
for seditious libel against the
governor. At that time, truth
was not a defense in a
libel case. Zenger’s attorney
told the jury of their power
and duty to judge the law as
well as the facts, and the jury
acquitted Zenger. Though not
a Supreme Court case, this is
a landmark freedom of the
press case.
People v. Croswell (1804)
Harry Croswell was convicted
of libel for printing a story
critical of President Thomas
Jefferson in his newspaper.
Alexander Hamilton
represented Croswell on
appeal and argued that truth
should be a defense for libel.
Croswell’s conviction was
upheld, but the case led New
York to change its law to
permit truth as a defense.
Though not a Supreme Court
case, this is a landmark
freedom of the press case.
Near v. Minnesota (1931)
A state law allowing prior
restraint was unconstitutional.
This decision also extended
protection of press freedom
to the states through the
Fourteenth Amendment.
New York Times v. Sullivan
(1964)
The First Amendment
protected all statements
about public officials unless
the speaker lied with the
intent to defame.
Garrison v. Louisiana (1964)
A Louisiana law that punished
true statements made with
“actual malice” was
overturned. The Court ruled
that unless a newspaper
shows “reckless disregard for
the truth,” it is protected
under the First Amendment.
Curtis Publishing Co. v.
Butts and AP v. Walker
(1967)
A “public figure” who is
not a public official may
recover damages for a
defamatory falsehood what
harms his or her reputation, if
the newspaper’s actions were
an “extreme departure” of the
standards of reporting.
New York Times v. United
States (1971)
A claimed threat to national
security was not justification
for prior restraint on
publication of classified
documents (the Pentagon
Papers) about the Vietnam
War.
Nebraska Press Association
v. Stuart (1976)
A judge’s order that the
media not publish or
broadcast statements by
police in a murder trial was an
unconstitutional prior
restraint. The gag order
violated the First Amendment
rights of the press and the
community.
Zacchini v. Scripps-Howard
Broadcasting (1977)
The Court ruled that the First
Amendment does not give a
television station to right to air
the entire act of a
performance without the
performer’s permission.
Hustler v. Falwell (1988)
The First Amendment
prohibits public figures from
recovering damages for
intentional infliction of
emotional harm unless the
publication contained a false
statement made with actual
malice.
Hazelwood School District v.
Kuhlmeier (1988)
Public school officials can
censor school-sponsored
newspapers, because the
newspapers are part of the
school curriculum rather than
a forum for public expression.
Top
FREEDOM OF
ASSEMBLY/ASSOCIATION
Dejonge v. Oregon (1937)
Federal protection of the right
of peaceful assembly for
lawful discussion was
extended to the states.
NAACP v. Alabama (1958)
An Alabama law requiring
associations to disclose their
membership lists was struck
down. This requirement would
suppress legal association
among the group’s members.
Edwards v. South Carolina
(1963)
The convictions of students
arrested for peaceful
demonstrations against
segregation were overturned
because the state could not
“make criminal the peaceful
expression of unpopular
views.”
Lloyd Corporation v. Tanner
(1972)
Shopping mall owners may
prohibit demonstrators from
assembling in their private
malls since the First
Amendment applies to public,
not private property.
Village of Skokie vs. National
Socialist Party (1978)
The National Socialist (Nazi)
Party could not be prohibited
from marching peacefully
because of the content of
their message.
Rotary International v. Rotary
Club of Duarte (1987)
California state law requiring
Rotary Clubs to admit women
was constitutional. Because
women members would not
prevent the group from
accomplishing its goals, the
Court held that the state’s
compelling interest in ending
sexual discrimination
outweighed the infringement
on the group’s right of
association.
Madsen v. Women’s Health
Clinic (1994)
Some restrictions on
protesters at a Florida
abortion clinic, including limits
on noise amplification and a
required buffer zone, did not
violate the First Amendment.
The restrictions that “burden
[ed] no more speech than
necessary” to protect access
to the clinic and ensure
orderly traffic flow on the
street were upheld. The
restrictions that burdened
“more speech than
necessary” and were struck
down.
Hurley v. Irish American GLIB
Association (1995)
Forcing a privately-organized
parade to include homosexual
and bisexual groups would be
a form of coerced speech and
violated the organizers’ First
Amendment rights.
Schenck v. Pro-Choice
Network of Western New York
(1997)
”Fixed buffers” around
abortion clinics were
constitutional since they
protected the government’s
interest in protecting private
property and preventing
illegal activity. A fifteen-foot
“floating buffer” around
patients leaving or entering
an abortion clinic was struck
down as an infringement of
the protestors’ First
Amendment rights.
Boy Scouts of America v.
Dale (2000)
Forcing the Boy Scouts to
admit a gay scout leader
would violate the private
organization’s rights to
freedom of association and
expressive association.
FREEDOM OF PETITION
NAACP v. Button (1963)
States could not stop the
NAACP from soliciting people
to serve as litigants in federal
court cases challenging
segregation.
Meyer v. Grant (1988)
States could not bar groups
from hiring individuals who
circulate petitions in support
of a ballot measure.
Buckley v. American
Constitutional Law
Foundation (1999)
The Court ruled that states
could not require petition
circulators to be registered
voters, wear name badges, or
disclose information about
themselves and their salaries.
GENERAL
Virginia v. Hicks (2003)
Richmond could ban non-
residents from public
housing complexes if the
non-residents did not
have “a legitimate
business or social
purpose” for being there.
The trespass policy was
not overbroad and did
not infringe upon First
Amendment rights.
Ashcroft v. ACLU (2004)
The Child On-Line
Protection Act violated the
First Amendment because
it was overbroad, it
resulted in content-based
restrictions on speech,
and there were less-
restrictive options
available to protect
children from harmful
materials.
Watchtower Bible and
Tract Society v. Stratton
(2002)
City laws requiring permits for
political advocates going door to
door were unconstitutional
because such a mandate would
have a “chilling effect”
on political
communication.
Schenck v. United States
(1919)
Freedom of speech can be
limited during wartime. The
government can restrict
expressions that “would
create a clear and present
danger that they will bring
about the substantive evils
that Congress has a right to
prevent.”
Abrams v. United States
(1919)
The First Amendment did not
protect printing leaflets urging
to resist the war effort, calling
for a general strike and
advocating violent revolution
Debs v. United States (1919)
The First Amendment did not
protect an anti-war speech
designed to obstruct
recruiting.
Gitlow v. New York (1925)
The Supreme Court applied
protection of free speech to
the states through the due
process clause of the
Fourteenth Amendment.
Chaplinsky v. New Hampshire
(1942)
The First Amendment did not
protect “fighting words” which,
by being said, cause injury or
cause an immediate breach
of the peace.
West Virginia v. Barnette
(1943)
The West Virginia Board’s
policy requiring students and
teachers to recite the Pledge
of Allegiance was
unconstitutional. Reversing
Minersville v. Gobitas (1940),
the Court held government
cannot “force citizens to
confess by word or act their
faith” in matters of opinion.
United States v. O’Brien
(1968)
The First Amendment did not
protect burning draft cards in
protest of the Vietnam War as
a form of symbolic speech.
Tinker v. Des Moines (1969)
The Court ruled that students
wearing black armbands to
protest the Vietnam War was
“pure speech,” or symbolic
speech protected by the First
Amendment.
Brandenburg v. Ohio (1969)
The Supreme Court held that
the First and Fourteenth
Amendments protected
speech advocating violence
at a Ku Klux Klan rally
because the speech did not
call for “imminent lawless
action.”
Cohen v. California(1971)
A California statute
prohibiting the display of
offensive messages violated
freedom of expression.
Miller v. California (1973)
This case set forth rules for
obscenity prosecutions, but it
also gave states and localities
flexibility in determining what
is obscene.
Island Trees School District v.
Pico (1982)
The Supreme Court ruled that
officials could not remove
books from school libraries
because they disagreed with
the content of the books’
messages.
Bethel School District v.
Fraser (1986)
A school could suspend a
pupil for giving a student
government nomination
speech full of “elaborate,
graphic, and explicit sexual
metaphor.”
Texas v. Johnson (1989)
Flag burning as political
protest is a form of symbolic
speech protected by the First
Amendment.
R.A.V. v. St. Paul(1992)
A criminal ordinance
prohibiting the display of
symbols that “arouse anger,
alarm or resentment in others
on the basis of race, color,
creed, religion or gender” was
unconstitutional. The law
violated the First Amendment
because it punished speech
based on the ideas
expressed.
Reno v. ACLU (1997)
The 1996 Communications
Decency Act was ruled
unconstitutional since it was
overly broad and vague in its
regulation of speech on the
Internet, and since it
attempted to regulate
indecent speech, which the
First Amendment protects.
United States v. American
Library Association (2003)
The federal government
could require public libraries
to use Internet-filtering
software to prevent viewing of
pornography by minors. The
burden placed on adult
patrons who had to request
the filters be disabled was
minimal.
Virginia v. Black (2003)
A blanket ban on cross-
burning was an
unconstitutional content-
based restriction on free
speech. States could ban
cross burning with intent to
intimidate, but the cross
burning act alone was not
enough evidence to infer
intent.
FREEDOM OF SPEECH:
CAMPAIGN FINANCE
Buckley v. Valeo (1976)
“Reasonable restrictions” on
individual, corporate and
group contributions to
candidates were allowed;
limits on campaign
expenditures were
unconstitutional since these
placed “substantial and direct
restrictions” on protected
political expression.
Colorado Republican Federal
Campaign Committee v. FEC
(1996)
The Court ruled that
campaign spending by
political parties on behalf of
congressional candidates
could not be limited as long
as the parties work
independently of the
candidates.
McConnell v. Federal
Election Commission (2003)
Limitations on “soft-money”
contributions and political
advertisements were
acceptable infringements of
free speech because of the
government’s interest in
preventing corruption or the
appearance of corruption in
elections.
FREEDOM OF SPEECH:
COMMERCIAL
Virginia Board of Pharmacy v.
Virginia Citizens Consumer
Council (1976)
A pharmacy had the First
Amendment right to advertise
prices.
Linmark v. Willingboro (1977)
A town prohibition on “For
Sale” and “Sold” signs was
unconstitutional. The ban was
unreasonable restriction on
the flow of commercial
information.
United States v. United Foods
(2001)
A law forcing cooperatives of
mushroom growers to pay
advertising fees was “contrary
to First Amendment
principles” as a form of
compelled speech.
FREEDOM OF THE PRESS
Rex v. Zenger (1735)
The colony of New York tried
publisher John Peter Zenger
for seditious libel against the
governor. At that time, truth
was not a defense in a
libel case. Zenger’s attorney
told the jury of their power
and duty to judge the law as
well as the facts, and the jury
acquitted Zenger. Though not
a Supreme Court case, this is
a landmark freedom of the
press case.
People v. Croswell (1804)
Harry Croswell was convicted
of libel for printing a story
critical of President Thomas
Jefferson in his newspaper.
Alexander Hamilton
represented Croswell on
appeal and argued that truth
should be a defense for libel.
Croswell’s conviction was
upheld, but the case led New
York to change its law to
permit truth as a defense.
Though not a Supreme Court
case, this is a landmark
freedom of the press case.
Near v. Minnesota (1931)
A state law allowing prior
restraint was unconstitutional.
This decision also extended
protection of press freedom
to the states through the
Fourteenth Amendment.
New York Times v. Sullivan
(1964)
The First Amendment
protected all statements
about public officials unless
the speaker lied with the
intent to defame.
Garrison v. Louisiana (1964)
A Louisiana law that punished
true statements made with
“actual malice” was
overturned. The Court ruled
that unless a newspaper
shows “reckless disregard for
the truth,” it is protected
under the First Amendment.
Curtis Publishing Co. v.
Butts and AP v. Walker
(1967)
A “public figure” who is
not a public official may
recover damages for a
defamatory falsehood what
harms his or her reputation, if
the newspaper’s actions were
an “extreme departure” of the
standards of reporting.
New York Times v. United
States (1971)
A claimed threat to national
security was not justification
for prior restraint on
publication of classified
documents (the Pentagon
Papers) about the Vietnam
War.
Nebraska Press Association
v. Stuart (1976)
A judge’s order that the
media not publish or
broadcast statements by
police in a murder trial was an
unconstitutional prior
restraint. The gag order
violated the First Amendment
rights of the press and the
community.
Zacchini v. Scripps-Howard
Broadcasting (1977)
The Court ruled that the First
Amendment does not give a
television station to right to air
the entire act of a
performance without the
performer’s permission.
Hustler v. Falwell (1988)
The First Amendment
prohibits public figures from
recovering damages for
intentional infliction of
emotional harm unless the
publication contained a false
statement made with actual
malice.
Hazelwood School District v.
Kuhlmeier (1988)
Public school officials can
censor school-sponsored
newspapers, because the
newspapers are part of the
school curriculum rather than
a forum for public expression.
Top
FREEDOM OF
ASSEMBLY/ASSOCIATION
Dejonge v. Oregon (1937)
Federal protection of the right
of peaceful assembly for
lawful discussion was
extended to the states.
NAACP v. Alabama (1958)
An Alabama law requiring
associations to disclose their
membership lists was struck
down. This requirement would
suppress legal association
among the group’s members.
Edwards v. South Carolina
(1963)
The convictions of students
arrested for peaceful
demonstrations against
segregation were overturned
because the state could not
“make criminal the peaceful
expression of unpopular
views.”
Lloyd Corporation v. Tanner
(1972)
Shopping mall owners may
prohibit demonstrators from
assembling in their private
malls since the First
Amendment applies to public,
not private property.
Village of Skokie vs. National
Socialist Party (1978)
The National Socialist (Nazi)
Party could not be prohibited
from marching peacefully
because of the content of
their message.
Rotary International v. Rotary
Club of Duarte (1987)
California state law requiring
Rotary Clubs to admit women
was constitutional. Because
women members would not
prevent the group from
accomplishing its goals, the
Court held that the state’s
compelling interest in ending
sexual discrimination
outweighed the infringement
on the group’s right of
association.
Madsen v. Women’s Health
Clinic (1994)
Some restrictions on
protesters at a Florida
abortion clinic, including limits
on noise amplification and a
required buffer zone, did not
violate the First Amendment.
The restrictions that “burden
[ed] no more speech than
necessary” to protect access
to the clinic and ensure
orderly traffic flow on the
street were upheld. The
restrictions that burdened
“more speech than
necessary” and were struck
down.
Hurley v. Irish American GLIB
Association (1995)
Forcing a privately-organized
parade to include homosexual
and bisexual groups would be
a form of coerced speech and
violated the organizers’ First
Amendment rights.
Schenck v. Pro-Choice
Network of Western New York
(1997)
”Fixed buffers” around
abortion clinics were
constitutional since they
protected the government’s
interest in protecting private
property and preventing
illegal activity. A fifteen-foot
“floating buffer” around
patients leaving or entering
an abortion clinic was struck
down as an infringement of
the protestors’ First
Amendment rights.
Boy Scouts of America v.
Dale (2000)
Forcing the Boy Scouts to
admit a gay scout leader
would violate the private
organization’s rights to
freedom of association and
expressive association.
FREEDOM OF PETITION
NAACP v. Button (1963)
States could not stop the
NAACP from soliciting people
to serve as litigants in federal
court cases challenging
segregation.
Meyer v. Grant (1988)
States could not bar groups
from hiring individuals who
circulate petitions in support
of a ballot measure.
Buckley v. American
Constitutional Law
Foundation (1999)
The Court ruled that states
could not require petition
circulators to be registered
voters, wear name badges, or
disclose information about
themselves and their salaries.
Cases and Links
Why This Website
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Finkel v. Facebook
Posted March 3rd, 2009 by CMLP Staff
Threat Type: Lawsuit Date: 02/16/2009
Status: Concluded Location: New York
Disposition: Dismissed (total) Verdict/Settlement Amount: n/a
Legal Claims: Defamation; Negligence
Teenager Denise Finkel sued four of her former high school classmates, their
parents, and Facebook after the students created a private Facebook group called
"90 Cents Short of a Dollar," which allegedly contained false and defamatory
statements about her. The complaint alleges... read full description
Parties
Party Issuing Legal Threat: Party Receiving Legal Threat:
Denise E. Finkel Facebook, Inc.; Michael Dauber; Jeffrey Schwartz; Melinda
Danowitz; Leah Herz; Richard Dauber; Amy Schwartz; Elliott Schwartz; Martin
Danowitz; Bari Danowitz; Alan Herz; Ellen Herz
Type of Party: Type of Party:
Individual Individual; Large Organization
Location of Party: Location of Party:
New York New York
Legal Counsel: Legal Counsel:
Mark Altschul - Altschul & Altschul Lisa T. Simpson and Aaron G.R. Rubin -
Orrick, Herrington & Sutcliffe LLP (for Facebook); Lina C. Rossillo - Morris Duffy
Alonso & Faley (for Elliot, Jeffrey, and Amy Schwartz)
Description
Teenager Denise Finkel sued four of her former high school classmates, their
parents, and Facebook after the students created a private Facebook group called
"90 Cents Short of a Dollar," which allegedly contained false and defamatory
statements about her.
The complaint alleges that statements appearing on the private Facebook group
asserted or implied that she "was a woman of dubious morals, dubious sexual
character, having engaged in bestiality, an 'IV drug user' as well as having
contracted the H.I.V. virus and AIDS." Cmplt. ¶ 23. The postings are attached as an
exhibit to the complaint.
The complaint alleges that Facebook should be held liable for publishing the
defamatory matter, explaining that it "should have known that such statements were
false and/or have taken steps to verify the genuineness" of the statements. Id. ¶ 28.
The complaint also alleges that the students' parents are liable for negligently failing
to supervise their children.
Update:
9/15/09 - Court granted Facebook's motion to dismiss, finding that Facebook is
immune from liability under Section 230 of the CDA. Court rejects plaintiff's
argument that Facebook's Terms of Use which grant it an "ownership interest" in the
allegedy defamatory content makes Section 230 inapplicable.
7/22/10 - After removal to state court, state judge dismissed the remaining claims,
writing that, "Taken together, the statements can only be read as puerile attempts by
adolescents to outdo each other" (slip op. at 7).
Posted March 3rd, 2009 by CMLP Staff
Threat Type: Lawsuit Date: 02/16/2009
Status: Concluded Location: New York
Disposition: Dismissed (total) Verdict/Settlement Amount: n/a
Legal Claims: Defamation; Negligence
Teenager Denise Finkel sued four of her former high school classmates, their
parents, and Facebook after the students created a private Facebook group called
"90 Cents Short of a Dollar," which allegedly contained false and defamatory
statements about her. The complaint alleges... read full description
Parties
Party Issuing Legal Threat: Party Receiving Legal Threat:
Denise E. Finkel Facebook, Inc.; Michael Dauber; Jeffrey Schwartz; Melinda
Danowitz; Leah Herz; Richard Dauber; Amy Schwartz; Elliott Schwartz; Martin
Danowitz; Bari Danowitz; Alan Herz; Ellen Herz
Type of Party: Type of Party:
Individual Individual; Large Organization
Location of Party: Location of Party:
New York New York
Legal Counsel: Legal Counsel:
Mark Altschul - Altschul & Altschul Lisa T. Simpson and Aaron G.R. Rubin -
Orrick, Herrington & Sutcliffe LLP (for Facebook); Lina C. Rossillo - Morris Duffy
Alonso & Faley (for Elliot, Jeffrey, and Amy Schwartz)
Description
Teenager Denise Finkel sued four of her former high school classmates, their
parents, and Facebook after the students created a private Facebook group called
"90 Cents Short of a Dollar," which allegedly contained false and defamatory
statements about her.
The complaint alleges that statements appearing on the private Facebook group
asserted or implied that she "was a woman of dubious morals, dubious sexual
character, having engaged in bestiality, an 'IV drug user' as well as having
contracted the H.I.V. virus and AIDS." Cmplt. ¶ 23. The postings are attached as an
exhibit to the complaint.
The complaint alleges that Facebook should be held liable for publishing the
defamatory matter, explaining that it "should have known that such statements were
false and/or have taken steps to verify the genuineness" of the statements. Id. ¶ 28.
The complaint also alleges that the students' parents are liable for negligently failing
to supervise their children.
Update:
9/15/09 - Court granted Facebook's motion to dismiss, finding that Facebook is
immune from liability under Section 230 of the CDA. Court rejects plaintiff's
argument that Facebook's Terms of Use which grant it an "ownership interest" in the
allegedy defamatory content makes Section 230 inapplicable.
7/22/10 - After removal to state court, state judge dismissed the remaining claims,
writing that, "Taken together, the statements can only be read as puerile attempts by
adolescents to outdo each other" (slip op. at 7).
Hecimovich v. Encinal School Parent Teacher
Organization (2012) , Cal.App.4th
[No. A130852. First Dist., Div. Two. Feb. 9, 2012.]
LAWRENCE HECIMOVICH,
Plaintiff and Respondent,
v.
ENCINAL SCHOOL PARENT TEACHER ORGANIZATION et al.,
Defendants and Appellants.
(Superior Court of San Mateo County, No. CIV498362, Gerald J. Buchwald, Judge.)
(Opinion by Richman, J., with Kline, P.J., and Haerle, J., concurring.)
COUNSEL
Kirtland & Packard, Robert A. Muhlbach, Robert K. Friedl, and Jennifer Boldi for
Defendants and Appellants.
Lawrence Hecimovich, in pro. per. for Plaintiff and Respondent.
OPINION
RICHMAN, J.-
A recent Google search for "youth sports" showed 379,000,000 results. "Safety in
youth sports," 66,800,000. "Problem parents in youth sports," 21,600,000. And
"problem coaches in youth sports," 108,000,000. Subjects of tremendous interest.
Plaintiff Lawrence Hecimovich, by profession an attorney, was in 2008-2009 the
volunteer basketball coach of a fourth grade basketball team in the after school
program in Menlo Park. A discipline problem arose with one of the players on his team,
and plaintiff's attempts to resolve the issue with the boy's parents only exacerbated the
situation, to the point, plaintiff claimed, that the parents were "rallying team parents to
remove" him. Plaintiff then involved the volunteer league commissioner, who involved
other league officials. This led to an extensive review of the matter--and numerous
emails--the upshot of which was that plaintiff was told he would not be allowed to coach
the following year and a suggestion that, when he return, it be to coach older children.
Plaintiff's response was this lawsuit.
Representing himself, plaintiff filed a complaint against four defendants, the parent
teacher organization and three volunteers involved in running the after school program,
a complaint that purported to allege eight causes of action. Defendants filed an
anti-SLAPP motion, asserting that the lawsuit dealt with an issue of public interest and
that plaintiff could not demonstrate a likelihood of prevailing on the merits. The trial
court observed that the "gravamen" of plaintiff's complaint was defamation, and went on
to hold that defamation cannot be protected activity within the anti-SLAPP analysis. The
court thus denied the motion under the first step of the analysis, and did not reach step
two.
Defendants appeal, and we review the matter de novo, concluding first that
defamation can be protected activity and that plaintiff's lawsuit arose out of an
issue of public interest. And we go on--at plaintiff's express invitation--to decide the
second step, and hold that plaintiff has failed to demonstrate a likelihood of prevailing
on the merits. We thus reverse, with instructions to enter an order granting the motion
to strike, and to hold a hearing to determine the attorney fees to which defendants are
entitled for their success in having the lawsuit stricken.
INTRODUCTION
We begin with a general description of what plaintiff's lawsuit is about, as alleged in the
"Summary of Claims" in paragraph six of his verified complaint:
"6. Hecimovich was the volunteer basketball coach for an Encinal School fourth grade
team in the City of Menlo Park Community Services AfterSchool Basketball Program
during the 2008-2009 school year. Throughout the early part of the year, a player on
the team engaged in behavior that went beyond disruption to posing a serious risk to
his own safety and the safety of other players. That conduct included but was not
limited to kicking and throwing basketballs at the gym lights, clock and fire alarm in an
effort to break them; throwing or kicking balls at other players or other players'
basketballs to disrupt their shooting or dribbling; and disappearing without notice
during practices, including the final incident lasting half an hour. Hecimovich brought
these issues to the attention of the player's parents numerous times and was at first
ignored, then met with extreme anger and hostility, allegations that Hecimovich was
discriminating against the player, and the threat that the parent had rallied and would
continue to rally team parents to remove Hecimovich. When Hecimovich informed {Slip
Opn. Page 3} Encinal Basketball Coordinator Julie Roth of these developments, Roth
refused to allow Hecimovich to take any action to address the situation, despite the fact
that it clearly would not improve, lacking parent support. Roth . . . insisted, contrary to
written policy, that a coach could not reduce a p[l]ayer's minutes due to misconduct.
When Hecimovich informed Roth that the risk to player safety, the disruption to
practices and the impact on team cohesiveness was unacceptable and would not be
allowed under the rules of [American Youth Soccer Organization] or other youth
organizations, Roth accused him of 'unnecessarily escalating the situation' and
threatened various punishments, including removing him as a coach. The following
year, Roth, together with her successor, Leslie Burke, and PTO President Kelly Perri,
found Hecimovich unfit to coach and permanently barred Hecimovich from participating
in the Encinal League."
As will be seen, defendants take issue with certain of the specific accusations in
plaintiff's summary, and also with the description of what was ultimately said to plaintiff.
But defendants take no issue with the background that generated the communications
and the dispute here: the conduct of a kid on a fourth grade basketball team, his
parents' and his coach's reactions to it, and the ultimate resolution of the situation.
BACKGROUND
Plaintiff's Complaint
On August 27, 2010, representing himself, plaintiff filed a verified complaint for
damages, including punitive damages. It named four defendants, identified by plaintiff
as follows: Encinal School Parent Teacher Organization (PTO), a non-profit
organization; Kelly Perri, PTO President during the 2009-2010 school year; Julie Roth,
PTO Basketball Commissioner during the 2008-2009 school year; and Leslie Burke,
Basketball Commissioner during the 2009-2010 school year and currently (when
referred to collectively, defendants). The complaint alleged eight causes of action,
each against all defendants, styled by plaintiff as follows: (1) breach of contract; (2)
breach of the covenant of good faith and fair dealing; (3) retaliation in violation of
public policy; (4) libel and slander; (5) negligence; (6) fraud; (7) intentional infliction of
emotional distress; and (8) negligent infliction of emotional distress. {Slip Opn. Page 4}
The complaint was 20-pages long, with 88 paragraphs. The first five paragraphs
identified the parties; paragraph 6 was plaintiff's summary of claims quoted above;
paragraphs 7 through 45 were plaintiff's "factual allegations"; and the remaining
paragraphs purported to allege the essential elements of the eight causes of action
identified above. Significantly, all 39 "factual allegations" were incorporated into each of
the eight causes of action, perhaps most significantly the final factual allegation,
paragraph 45: "Hecimovich, who has coached soccer (along with basketball and
baseball) each of the last five years and intended to coach throughout his sons'
adolescence, has not coached again based on the defamation and other unlawful
conduct he experienced from defendants, and will not be able to coach until defendants
acknowledge their deceit and clear his reputation."
Interestingly, at no point--not in paragraph 45, not in the cause of action for "libel and
slander"--did plaintiff even attempt to allege what he claimed to be the defamatory
communication(s). fn. 1
The Motion to Strike
On October 13, 2010, defendants filed a special motion to strike pursuant to Code of
Civil Procedure section 425.16. fn. 2 The motion argued that: (1) the conduct alleged in
plaintiff's complaint was "in connection with a public issue or an issue of public interest,"
as it involved communications between a parent-teacher organization and parents
concerning plaintiff's coaching of young children; and (2) plaintiff would not be able to
show a likelihood of prevailing on the merits. {Slip Opn. Page 5}
The motion was supported by declarations of the three individual defendants, Perri,
Roth, and Burke, each of whom testified to their involvement with plaintiff and/or the
brouhaha that ensued. As developed in more detail below, this testimony included
problems with plaintiff and his coaching style; the welfare of the young players; and
what Perri, for example, described as her conclusion: "[B]ased on my responsibilities
and authority as president of the Encinal School Parent Teacher Organization, that it
would be prudent and appropriate to advise Coach Hecimovich that he would not be
able to coach in the program for at least one year. I simply did not believe that Coach
Hecimovich [sic] coaching style, based on my investigation, was appropriate for young
grammar school children. I so advised Coach Hecimovich and indicated that after one
year, I would consider allowing him to, once again, coach in the program." The three
declarations also testified that all communications in which the declarants participated
regarding plaintiff and his coaching were made without malice and to "interested
persons."
On November 1, 2010, plaintiff filed his opposition to the motion, consisting of a
14-page memorandum of points and authorities and his 16-paragraph declaration. He
filed no declarations from any third persons. Plaintiff's declaration had attached nine
exhibits which, according to him, were copies of the following: the basketball league
policies Roth distributed to coaches; four emails from plaintiff, one to the parents of the
young player involved, one to all team parents, one to Perri, and one to Burke; two
emails from Burke, one to plaintiff and one to Perri; and a grouping of several emails
from Perri, including one sent to all parents.
On November 9, 2010, defendants filed their reply. Along with it, they filed objections to
plaintiff's declaration, objecting to portions of his declaration identified by page and
line, generally on the grounds of hearsay and lack of foundation.
The Demurrer
Defendants had also filed a demurrer, which was scheduled to be heard on November 29, the same
day as the motion. {Slip Opn. Page 6}
The Hearing on the Motion
The court had issued a tentative ruling on the motion, apparently denying it. fn. 3 Defendants
contested it, and the result was a relatively brief argument, which began with the court noting what its
"thinking was here," which was this: "[Its] view was that there were some allegations that suggested
that claim here has to do with some false statements that were made about . . . the plaintiff's
performance and that that was why he wasn't able to coach anymore. [¶] . . . [¶] And so, even though it
isn't pled as a defamation claim it, you know that's what the allegations sound in if I can use an old
expression that we used to have."
Brief argument followed, with counsel for defendants citing authority for their position, after which the
court turned to plaintiff to see what he "has to say here." After addressing the primary case relied on
by defendants, plaintiff went on as follows:
"Secondly, the notion that anything somehow involves children or somehow involves a school raises
an issue of free speech on a matter of critical public importance that would completely open up every
case to a SLAPP motion. There would no longer be any lawsuits involving education or children or
government or anything else in that whole domain.
"Certainly, that is not the law and I think in the opposition I have cited a host of cases that it's
defendants' burden of showing that the gravamen of my claims which are, I think your Honor's
comment about it being sounding [in] defamation comprises an attack on specific efforts to engage
in free speech not significant public issues. And that is the case of Wang v. Wal-Mart, 153 Cal.App.4th
790. Clearly that's not what is at issue here.
"What is at issue here is a very internal policy matter. There is a written policy that says that a coach
could discipline children who engage in misconduct. The commissioner, upon being told a coach
wants to discipline a child is engaged in misconduct like limiting playing time, says, 'No, that is not
the policy. That policy doesn't apply to us.' " {Slip Opn. Page 7}
Counsel for defendants responded, principally focusing on the communications, all made in the
context of decisions that "impacted a number of children and their parents." Plaintiff briefly
responded, observing that if the court were to look, for example, at Roth's declaration, "this entirely
relates to a complaint raised by the coach, that being me, about a need to implement discipline
based upon student misconduct and Ms. Roth disagreed with that approach."
The court then said it was prepared to rule, and went on as follows:
"My view on it really doesn't rest so much on [the extent of the communications] and I am aware of
this, of the language in the statute that talks about activity that is done in connection with a matter of
public interest, but if what you say is true then would it mean that we could never have a defamation
lawsuit against a public figure in California and the standards of New York Times v. Sullivan being
invoked and the problem I have with the . . . motion is that it's clear that the complaint sets out alleged
defamation of character. And even if that is activity that is connected with freedom of speech, that kind
of speech has never been protected by the First Amendment. And so, and that has been the case
since at least the 1920's. The United States Supreme Court has held to that view. The California
Supreme Court is held to that view and it seems to me that given what the claim here actually is,
leaving aside some of the problems with the pleadings that I have noted. If you look at the essence of
the claim, it's that there were false statements being publicly made that were published and this is a
remedy, this special motion to strike is a remedy that was designed and is intended to protect
protected speech not unprotected speech."
Counsel for defendants disagreed, to no avail, and the remainder of the brief hearing dealt with the
court's oral rulings on defendants' objections to evidence, which apparently were all "overruled" in the
tentative ruling, but with no grounds given.
At the conclusion of the hearing, the court confirmed the basis of its ruling: "Because the basis of the
claim is purported defamation that it's not a claim as to which the special motion to strike applies
because defamation by its definition is something that for years has been held not to be protected by
the first amendment and in order for you to {Slip Opn. Page 8} make a threshold showing you have
got to show that there is a connection to some protected First Amendment activity and that showing
isn't made here."
On January 7, 2011, the court filed its two-page order, the substance of which provided in its entirety
as follows:
"1. The Motion to Strike by Defendants pursuant to C.C.P. § 425.16 is denied. The Court finds that
Defendants failed to meet their burden of showing that Plaintiff [sic] claims arises [sic] from
Defendants' exercise of free speech or petition rights as defined by C.C.P. § 425.16. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) A fair reading of the Complaint is that
the gravamen of Plaintiff's claim is a purported defamation of character, something that, if true, is not
protected by the First Amendment,
"2. The Defendants [sic] objections to the Declaration of Lawrence Hecimovich are overruled. Specific
grounds for the Court overruling these objections was set forth, on the record, during the hearing on
the subject motion.
"3. Plaintiff's request for judicial notice of certain documents is denied."
On January 7, 2011, defendants filed their notice of appeal.
The Demurrer and the Amended Complaint
As indicated above, defendants had also filed a demurrer. As to it, the court sustained the demurrer
to all eight causes of action in the complaint, without leave to amend as to the third cause of action,
and with leave to amend as to the other seven.
On December 8, 2010, and before defendants filed their notice of appeal, plaintiff filed his verified first
amended complaint for damages.
Plaintiff's Motion to Augment
In his brief to us, plaintiff chastises defendants for "improperly omit[ting] from the record plaintiff's first
amended complaint filed December 8, 2010, one month before the appeal." And on July 6, 2011,
plaintiff filed a motion to augment the record on appeal, to include (1) the first amended complaint,
and (2) a copy of a January 2011 article from an online newspaper, The Almanac Online, entitled
"Encinal Coach's Lawsuit Ruling Appealed," along with online comments about the article.
Defendants opposed the {Slip Opn. Page 9} motion, and on July 14 we ordered that we would take
the motion under submission and decide it with the merits of the appeal.
On September 9, 2011, plaintiff filed what he called a "Supplemental Memorandum and Post- Motion
Evidence in Support of His Motion to Augment the Record." This sought to augment the record to
"reflect [plaintiff's] efforts to obtain discovery" concerning the "authorship of the defamatory January
2011 online articles," which discovery was disallowed by the trial court.
We now deny the motion to augment.
The reason plaintiff sought to add the first amended complaint was, in his words, for "the sole
purpose of adjudicating the second prong of the anti-SLAPP test--assessing [plaintiff's] likelihood of
success on the merits. [Plaintiff] cited to Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870-871.
Nguyen-Lam is directly on point." Nguyen-Lam is not on point. Roberts v. Los Angeles County Bar
Assn. (2003) 105 Cal.App.4th 604 is.
Roberts was, as here, an appeal from a denial of a SLAPP motion. And plaintiff Robert's first
contention was that the appeal was "moot, frivolous, and should be dismissed because prior to the . .
. filing of the notice of appeal she filed a second amended complaint, which is now the operative
pleading." (Roberts v. Los Angeles County Bar Assn., supra,105 Cal.App.4th at p. 612 (Roberts).)
Rejecting that claim, the court held that "An implied stay in the proceedings where the plaintiff files an
amended complaint prior to the defendant's appeal of the denial of a SLAPP motion to strike is
necessary so that a plaintiff cannot deprive a defendant of the right to the appellate review granted by
the Legislature so that the appellate court can determine if the defendant had made a prima facie
showing. [¶] There would be little benefit in a right to appeal if the plaintiff could get around appellate
review by filing an amended pleading. Nor would a competitive rush to the courthouse fulfill the
legislative purpose of a quick and inexpensive method of unmasking and dismissing SLAPP suits."
(Id. at p. 613; accord, Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 [appeal from
grant of SLAPP motion].) {Slip Opn. Page 10}
Nguyen-Lam v. Cao, the case relied upon by plaintiff, is not to the contrary. There, the trial court had
entered an unusual order, described by the Court of Appeal as follows: "The trial court couched its
ruling as an order granting defendant's motion to strike, but with leave for plaintiff to amend her
complaint to cure any deficiency concerning actual malice. . . . But authorizing an amendment under
these circumstances is tantamount to denying the strike motion, and we therefore reach the propriety
of the ruling based on defendant's challenge." (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp.
869-870.) The court went on to affirm the denial of the SLAPP motion, pointedly noting that it did so
because the evidence showing that plaintiff could prevail on the merits was before the trial court at
the time of the motion: "True, a plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion
by filing an amended complaint (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004)
122 Cal.App.4th 1049) but where, as here, the evidence prompting amendment is found in the
declarations already submitted for the hearing, there is no risk the purpose of the strike procedure
will be thwarted with delay, distraction, or increased costs. (Cf. ARP Pharmacy Services, Inc. v.
Gallagher Bassett Services, Inc. (2006) 138 Cal.App.4th 1307, 1323 [plaintiff cannot amend pleading
to avoid pending anti-SLAPP motion]); Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772 [plaintiff
cannot use " 'eleventh-hour amendment' " to plead around anti-SLAPP motion].)" (Nguyen-Lam v.
Cao, supra, 171 Cal.App.4th at pp. 871-872.) In short, the court concluded, "the trial court did not err in
permitting plaintiff to amend her complaint to plead actual malice in conformity with the proof
presented at the hearing on the strike motion." (Id. at p. 873.)
This, of course, is not the setting here, and the first amended complaint has no place before us, as
plaintiff at one point apparently concedes, observing that "the original complaint remains the
operative pleading for purposes of assessing whether [defendants] engaged in protected activity
subject to the SLAPP statute."
As to the January 2011 online newspaper article and the numerous comments that followed it--all
published after the appeal was filed--they have nothing to do with the {Slip Opn. Page 11} two issues
involved in the SLAPP analysis. fn. 4 Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005,
cited by plaintiff in his reply brief for the proposition that "nothing in the statute or case law suggests
that the factual analysis for ruling on the motion must be frozen in time on the date the complaint is
filed," is easily distinguishable. Slauson held that a trial court ruling on a SLAPP motion--there, in a
case involving an injunction--could rely on postcomplaint evidence in ruling on the motion. (Id. at p.
1021.) Not postappeal evidence.
In sum, we analyze the matter based on plaintiff's complaint and the papers filed below in connection
with the SLAPP motion, an analysis to which we now turn.
DISCUSSION
SLAPP Law and the Standard of Review
Subdivision (b)(1) of section 425.16 provides that "[a] cause of action against a person arising from
any act of that person in furtherance of the person's right of petition or free speech under the United
States or California Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim." Subdivision (e) elaborates the four types of acts
within the ambit of a SLAPP, including, as pertinent here, "(4) any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest."
A two-step process is used for determining whether an action is a SLAPP. First, the court decides
whether the defendant has made a threshold showing that the challenged cause of action is one
arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff's
complaint fits one of the categories spelled out in section 425.16, subdivision (e). If the court finds
that such a showing has been made, it {Slip Opn. Page 12} must then determine the second step,
whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten
(2002) 29 Cal.4th 82, 88 (Navellier).)
"The Legislature enacted section 425.16 to prevent and deter 'lawsuits [referred to as SLAPP's]
brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances." (§ 425.16, subd. (a).) Because these meritless lawsuits seek
to deplete 'the defendant's energy' and drain 'his or her resources' [citation], the Legislature sought '
"to prevent SLAPPs by ending them early and without great cost to the SLAPP target" ' [citation].
Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the
lawsuit using a summary-judgment-like procedure at an early stage of the litigation." (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
Finally, and as subdivision (a) of section 425.16 expressly mandates, the section "shall be construed
broadly."
With these principles in mind, we turn to a review of the issues before us, a review that is de novo.
(Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988 (Grewal).)
Defamation Suits Can Be Within SLAPP
As noted, the first step in the SLAPP analysis is to determine whether the lawsuit is within one of the
four descriptions of protected activity in subdivision (e) of section 425.16. The trial court held it was
not, because it sounded in defamation which, the court held, is not--and apparently can never
be--protected activity. Such holding was wrong.
Numerous cases have made the SLAPP analysis in defamation cases, as manifest by the five pages
of cases discussed in Notes 29 through 35 of the annotations to section 425.16 in West's Annotated
Codes. (See Notes of Decisions, 14B West's Ann. Code Civ. Proc. (2004), foll. § 425.16, pp.
413-418.) Indeed, as our colleagues in Division One confirmed in the course of a lengthy discussion
of the history and purpose of the SLAPP procedure, defamation is the very first of the " 'favored
causes of action in SLAPP suits.' " (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 890; accord, {Slip
Opn. Page 13} Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1400,
fn. 9 [" 'The favored causes of action in SLAPP suits are defamation . . . .' "].)
As another Court of Appeal observed, " 'defamation suits are a prime target of SLAPP motions. [¶] . . .
The Legislature did not intend that in order to invoke the special motion to strike the defendant must
first establish her actions are constitutionally protected under the First Amendment as a matter of
law. If this were the case then the inquiry as to whether the plaintiff has established a probability of
success would be superfluous." (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404,
419-420, citing Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305.) In short, the
basis on which the trial court denied the motion was wrong.
But that does not end the inquiry, as we must determine on our de novo review whether plaintiff's
lawsuit involves an "issue of public interest."
Plaintiff's Lawsuit Involves an Issue of Public Interest
Like the SLAPP statute itself, the question whether something is an issue of public interest must be "
' "construed broadly." ' " (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23; Rivera v. First DataBank, Inc.
(2010) 187 Cal.App.4th 709, 716 (Rivera).) An " 'issue of public interest' " is " 'any issue in which the
public is interested.' " (Id. at p. 716, quoting Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027,
1042.) A matter of " ' "public interest should be something of concern to a substantial number of
people. [Citation.] . . . [T]here should be some degree of closeness between the challenged
statements and the asserted public interest [citation] . . . . [T]he focus of the speaker's conduct should
be the public interest . . . ." ' [Citation.] Nevertheless, it may encompass activity between private
people." (Rivera, supra, 187 Cal.App.4th at p. 716.)
We look for "the principal thrust or gravamen of plaintiff's cause of action." (Martinez v. Metabolife
Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) We " 'do not evaluate the first prong of the anti-SLAPP
test solely through the lens of a plaintiff's cause of action.' " (Stewart v. Rolling Stone LLC (2010) 181
Cal.App.4th 664, 679.) The "critical consideration" is what the cause of action is "based on."
(Navellier, supra, 29 Cal.4th at p. 89.) {Slip Opn. Page 14}
Applying those principles here leads easily to the conclusion that the communications and conduct
about which plaintiff complains were in connection with an issue of public interest.
We begin with the "factual allegations" in plaintiff's complaint, the first of which refer to Roth, and her
involvement with plaintiff in connection with a problem he had with his young player and the player's
parents. These allegations confirm that the issue included the parents telling Roth that in their
opinion plaintiff posed a danger to their child's physical safety. In fact, plaintiff himself stated that he
"could not coach a player whose parents considered [plaintiff] unsafe."
The next factual assertions, those concerning Burke, involve statements attributed to her in her
capacity as the PTO Basketball Commissioner, all concerning plaintiff's problems with the player and
his parents. These include a recitation of alleged conversations between Burke and plaintiff's
assistant coach Picciotto, a communication from Burke to Perri to the effect that respondent was
"bullying two moms," and the decision to "remove" him as a coach.
The next allegations are about Perri, again of conduct and statements attributed to her in an official
capacity as PTO President. And these allegations conclude with the statement, "Perri determined that
Hecimovich was unfit to coach and informed Hecimovich's team parents of that conclusion." In short,
plaintiff's own complaint concedes that the communications in issue here concern the well-being of
young children in an after school sports program, as discussed between and among members of
the PTO, parents of the young team members, and league officials.
As noted above, the declarations of individual defendants Roth, Perri, and Burke confirm in great
detail that the issue with the player and plaintiff's fitness to coach young players was the basis of the
dispute. And plaintiff's own declaration makes the point graphically, with 15 of his 16 paragraphs
describing the dispute in detail. These paragraphs include plaintiff's sworn testimony that the player's
parents were alleging that plaintiff was "discriminating against the players"; that assistant coach
Picciotto had been told by Burke that a player's father had "filed a formal written complaint insisting
that {Slip Opn. Page 15} [plaintiff] not be allowed to coach again, and that Roth had reported that
[plaintiff] had used improper disciplinary tactics against the player"; and that Perri contacted parents
of the players to "inform them that the PTO had banned [plaintiff] from coaching (head or assistant
coach) due to what was considered unacceptable conduct coaching their sons."
This is an issue of public interest.
Defendants relied below, and rely here, on Terry v. Davis Community Church (2005) 131 Cal.App.4th
1534 (Terry), where the essence of plaintiffs' complaint was that they were falsely accused of having
an inappropriate sexual relationship with a minor female in their work as church youth group leaders.
(Id. at p. 1538.) The evidence showed that parents had complained about the plaintiffs' dealings with
the minor, which prompted a church investigation, the result of which was a confidential report of the
church describing an inappropriate relationship with the minor. (Id. at pp. 1539-1542.) The report was
then discussed among interested church members, first in a February 19, 2004 closed meeting of
church officials and then at "two meetings on February 22, 2004, with parents of youth group
members. The Church had received many inquiries from parents and concluded they had a right to
know about the investigation. Defendants distributed copies of the report at the meetings and took
care to collect all copies as the meetings ended. About 100 people saw the report." (Id. at p. 1543.)
Plaintiffs sued the church, the pastor, and church leaders for libel, slander, and intentional and
negligent infliction of emotional distress, and sought injunctive relief after the distribution of the report
at the meetings. Defendants responded with a SLAPP motion, which the trial court granted. The Court
of Appeal affirmed, finding that "the communications clearly involved issues of public interest,
because they involved the societal interest in protecting a substantial number of children from
predators." (Terry, supra, 131 Cal.App.4th at pp. 1538-1539, 1547.) Doing so, the court first rejected
the argument that the case involved only matters of private interest: "Plaintiffs characterize the issue
in this case as a private relationship between George Terry and the girl. Not so. The issue as to
whether or not an adult who interacts with minors in a church youth program has engaged in an
inappropriate relationship with any of the minors is clearly a {Slip Opn. Page 16} matter of public
interest. The public interest is society's interest in protecting minors from predators, particularly in
places such as church programs that are supposed to be safe. It need not be proved that a particular
adult is in actuality a sexual predator in order for the matter to be a legitimate subject of discussion."
(Id. at p. 1547.)
And the court went on: "Here, the broad topic of the report and the meetings was the protection of
children in church youth programs, which is an issue of public interest. This is not to say that George
Terry in fact molested the girl. Rather, George Terry's actions in engaging in a secretive and
inappropriate relationship with the girl gave the Church and parents of youth group members cause
for concern and opened for discussion the topics of whether other children were affected and how to
prevent such inappropriate relationships." (Terry, supra, 131 Cal.App.4th at p. 1548.)
Plaintiff says nothing in any attempt to distinguish the holding or reasoning or Terry, contenting
himself with criticism of defendants for their reliance on the case and taking umbrage at being
equated with a child molester. fn. 5 That, of course, is not the point. The point is that, like the safety of
children issue in Terry, the safety of children in sports is also an issue of public interest--which issue,
as shown by plaintiff's own pleading and declaration, was at the heart of his dispute with defendants.
Indeed, it would appear that plaintiff essentially agrees that the suitability of his coaching style was a
matter of public interest among the parents. As plaintiff testified, he himself urged the team parents to
join in an investigation of his suitability to coach the {Slip Opn. Page 17} young players because it
involved "the well being of our kids." In his words: "Please, if you would, take the time to answer
[Perri's] questions fully and truthfully, and don't hold anything back on the grounds that it might be
hurtful to me. I think that if the PTO wants to ensure the well being of our kids (at least in this one,
highly-selective occasion) everyone should be forthcoming."
As noted, plaintiff has requested that we augment the record to include, among other things, a
January 2011 article in The Almanac Online about the lawsuit and numerous follow up comments
about it. While we decline the request to augment, we do note that the scope and breadth of the
comments, not to mention the article itself, show just how much the public was interested in the
issue.
In sum, we conclude that safety in youth sports, not to mention problem coaches/problem parents in
youth sports, is another issue of public interest within the SLAPP law. (See, also, Sipple v.
Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 236-240 [domestic violence]; M.G. v. Time
Warner, Inc. (2001) 89 Cal.App.4th 623 [molestation in youth sports]; Nagel v. Twin Laboratories, Inc.
(2003) 109 Cal.App.4th 39 [dietary supplement]; Wilbanks v. Wolk, supra, 121 Cal.App.4th at p.
898-899 [quality of seller's products]; Terry, supra, 131 Cal.App.4th at p. 1547 [protection of children
from predators]; Gilbert v. Sykes, supra, 147 Cal.App.4th 13 [plastic surgery]; and McGarry v. University
of San Diego (2007) 154 Cal.App.4th 97 [firing of college football coach].)
Plaintiff Has Failed to Demonstrate a Likelihood of Prevailing on the Merits
The second step in the SLAPP analysis is to determine whether plaintiff has shown a probability of
prevailing on the claim. Here, because the trial court found, however erroneously, that plaintiff's
lawsuit was not within the SLAPP statute, it did not reach step two. Nevertheless, we can decide the
issue (see Roberts, supra, 105 Cal.App.4th at pp. 615-616) and, in fact, plaintiff "asks [us] to address
the likelihood of success on the merits prong on the anti-SLAPP test." We thus decide step two. And
conclude that plaintiff has failed to meet his burden. {Slip Opn. Page 18}
Introduction to Analysis
We confirmed the applicable law in Grewal, supra, 191 Cal.App.4th at p. 989: "We decide the second
step of the anti-SLAPP analysis on consideration of 'the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).) Looking
at those affidavits, '[w]e do not weigh credibility, nor do we evaluate the weight of the evidence.
Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence
only to determine if it defeats the plaintiff's submission as a matter of law.' (Overstock.com, Inc. v.
Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700. [¶] That is the setting in which we
determine whether plaintiff has met the required showing, a showing that is 'not high.'
(Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the
Supreme Court, plaintiff needs to show only a 'minimum level of legal sufficiency and triability.'
(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438 fn. 5.) In the words of other courts, plaintiff needs
to show only a case of 'minimal merit.' (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton
LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier v. Sletten[, supra,] 29 Cal.4th 82, 95, fn. 11.)"
While plaintiff's burden may not be "high," he must demonstrate that his claim is legally sufficient.
(Navallier v. Sletten, supra, 29 Cal.4th at p. 93.) And he must show that it is supported by a sufficient
prima facie showing, one made with "competent and admissible evidence." (Tuchscher
Development Enterprisers, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236;
Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.) Plaintiff's demonstration does not measure up.
As noted, the trial court thought the "gravamen" of plaintiff's lawsuit was defamation. Plaintiff
seemingly did not disagree below, as reflected in his argument, where he apparently adopted the
court's analysis. Here, by contrast, plaintiff vigorously disagrees, and asserts that defendants' claim
that defamation is the gravamen of his suit is "manifestly false, rendering their failure to address
[plaintiff's] other causes of action fatal to their appeal." And, plaintiff goes on, "[T]he Complaint makes
clear that {Slip Opn. Page 19} [plaintiff's] principal grievance relates to the baseless decision to bar
him from the Encinal and Hillview programs based on the erroneous insistence that [plaintiff] had
improperly benched a player. In fact, [plaintiff] repeatedly offered to forgive the loss of a season
coaching his sons' teams, withdraw his grievances and forego legal action--first, not to file the
complaint, then, not to serve it, then, to dismiss the complaint and forego damages--if [defendants]
simply allowed him to return to coaching in year two, then, in year three. [Defendants] rejected those
overtures. . . ." Two brief paragraphs follow, the second of which says this: "To pretend that the
Complaint can be reduced to a single theory of injury, and that the gravamen of [plaintiff's] claims
sounds in defamation, is a mere fiction. The court below accepted that characterization so as to
expeditiously deny the motion, since the defamation allegations clearly fall outside the SLAPP statute.
However, had [defendants] not failed miserably in their attempt to strike the defamation allegations,
they would have had to address the remaining claims."
Despite the position urged in his brief, plaintiff did not meaningfully address any of the other claims.
Nor, for that matter, did defendants. We thus requested supplemental briefing on the issue, and with
it proceed to analyze the second step in the SLAPP analysis, beginning with the claim which plaintiff
labels "libel and slander."
The Defamation Claim
As quoted above, paragraph 45 of plaintiff's complaint, incorporated by reference into all other causes
of action, states: "Hecimovich, who has coached soccer (along with basketball and baseball) each of
the last five years and intended to coach throughout his sons' adolescence, has not coached again
based on the defamation and other unlawful conduct he experienced from defendants, and will not
be able to coach until defendants acknowledge their deceit and clear his reputation."
Civil Code section 44 provides that defamation can be of two types, libel or slander. Libel is defined
in Civil Code section 45, slander in section 46. fn. 6 To prevail on a {Slip Opn. Page 20} claim for
defamation, plaintiff must show four elements: that defendants published the statements; that the
statements were about plaintiff; that they were false; and that defendants failed to use reasonable
care to determine the truth or falsity. (CACI No. 1704.)
We begin by noting that we are at a loss to discern just what defamatory communication(s) plaintiff is
complaining about. At no point in his briefing does he specifically identify any particular writing or
utterance; and as will be seen, he has provided no evidence demonstrating a prima facie case of
defamation--indeed, he did not even plead one. (See fn. 1 above.)
Plaintiff's entire pleading of the alleged "libel and slander" is this: "PTO, Roth, Burke and Perri have
knowingly made false statements, separate and apart from their investigatory efforts, if any, in order
to damage Hecimovich's standing in the community. Roth, Burke and Perri's statements were
defamatory per se in that they attributed to Hecimovich immoral qualities including a disregard for the
safety of children that by natural consequence would and have in fact injured Hecimovich's reputation
in the community and his ability to engage in the avocation of his choice." That is it. No specifics. No
reference to what, where, or when. No reference to oral or {Slip Opn. Page 21} written. Nothing.
Plaintiff's declaration is no better. The words "defame" or "defamation" are not even mentioned. And
the only reference to any claimed "falsity" is this: "12. During our meeting Perri conceded that she
was aware of no facts that would support Burke's claim that Hecimovich had attempted to institute
disciplinary tactics against the child that were punitive and against the league's rules and philosophy,
or that he had precluded a parent from enjoying continued participation in the basketball experience.
Picciotto has confirmed that Burke's reasons were false. Perri later confirmed he [sic] conclusion that
Roth and Burke's reasons for banning Hecimovich were false. True and correct copies of Perri's
November 18, 21 and 23, 2009 emails are attached as Exhibit C." fn. 7 Such alleged falsity does not
come within Civil Code section 46.
Plaintiff did allege, however conclusorily, that the PTO and the women volunteers asserted to team
parents that he is "unfit to coach." However, he is not a professional coach, but a lawyer who
volunteered to coach children. The statement does not have a tendency to injure plaintiff in his
profession. Nor expose him "to hatred, contempt, ridicule, or obloquy," or cause him to be "shunned
or avoided."
Plaintiff also alleged, also conclusorily, that the women volunteers defamed him by attributing to him
"immoral qualities including a disregard for the safety of children that by natural consequence would
have and in fact injured [plaintiff's] reputation in the community and his ability to engage in the
avocation of his choice." While such a statement might be defamatory, plaintiff has produced no
evidence of any defendant attributing to plaintiff "immoral qualities including a disregard for the safety
of children."
But even assuming that plaintiff could produce admissible evidence of the essential elements of a
claim for defamation, his claim would fail because of the privilege in Civil Code section 47,
subdivision (c): a "privileged publication . . . is one made . . . {Slip Opn. Page 22} (c) [i]n a
communication, without malice, to a person interested therein, (1) by one who is also interested, or
(2) by one who stands at such a relation to the person interested as to afford a reasonable ground for
supposing the motive for the communication to be innocent, or (3) was requested by a person
interested to give the information."
As noted above, all three defendants testified that all communications by them were to "interested
persons" who either requested the information or were entitled to it. These included school officials,
PTO members responsible for the boys' basketball program, the assistant coach, parents of the child
player, and league parents. Plaintiff provided no contrary evidence.
Furthermore, all three declarants testified to an absence of malice. Again, plaintiff put forth no contrary
evidence, no evidence showing " 'a feeling of hatred or ill will going beyond that which the occasion
for the communication apparently justified . . . .' " (Katz v. Rosen (1975) 48 Cal.App.3rd 1032, 1037.)
To defeat a SLAPP motion, plaintiff must overcome substantive defenses (Gerbosi v. Gaims, Weil,
West & Epstein, LLP (2011) 193 Cal.App.4th 435, 447-448), and his claim would fail for his inability to
show malice, as have the claims of many other plaintiffs who lost SLAPP motions because of such
inability. (See Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 275; Annette F. v. Sharon S. (2004)
119 Cal.App.4th 1146, 1162; Stewart v. Rolling Stone LLC, supra, 181 Cal.App.4th at pp. 689-690;
Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226-227 [malicious prosecution].)
All plaintiff says in response to defendants' privilege argument is this: "[Defendants] cannot possibly
establish that their admittedly false statements and dishonest actions were undertaken in good faith
and without malice. See, e.g., Rancho La Costa Inc. v. Superior Court (1980) 106 Cal.App.3d 646,
cert. denied 450 U.S. 902 (assertion that conditional privilege was apparent from complaint with bare
bones evidentiary submission amounts to claim of carte blanch [sic] application, precise contrary of
what section 47(c) allows)." From there plaintiff goes on with three brief ipse dixit arguments that
"Roth's story," "Burke's story," and "Perri's story" are "inherently self-contradictory and make[] no
sense." That is it. It is insufficient. {Slip Opn. Page 23}
The Remaining Claims Have No Merit
As noted, plaintiff now disagrees as to the gravamen of his lawsuit, and argues that defendants must
also address the other claims as well. As also noted, we have received supplemental briefing about
these claims, and will address them, following a few preliminary observations.
First, whatever their label, as plaintiff's paragraph 45, incorporated into all causes of action, expressly
states, all the causes of action arise from the same fundamental setting--a setting involving an issue
of public interest. Lee v. Fick (2005) 135 Cal.App.4th 89 is instructive. Plaintiff there was a high school
baseball coach who sued the parents of a player who urged school officials to fire the coach. His
complaint included claims for libel, slander, conspiracy to interfere with prospective economic
advantage, and intentional interference with prospective economic advantage. Defendants filed a
SLAPP motion as to these causes of action, which the trial court granted as to one cause of action
and denied as to the others. Both sides appealed. The Court of Appeal reversed in favor of
defendants, noting that the facts alleged to support the two causes of action for libel and slander
were the same as those asserted to support the causes of action for alleged interference with
economic advantage. (Id. at pp. 93, 99; see also Gerbosi v. Gaims, Weil, West & Epstein. LLP, supra,
193 Cal.App.4th at p. 447 [causes of action for intentional infliction of emotional distress, negligence,
malicious prosecution, and abuse of process all arise from same facts].)
Second, plaintiff's understanding of the SLAPP law is erroneous, especially his bold statement that
"breaching a contract is never a protected exercise of free speech or right of petition and hence
cannot constitute a protected activity for anti-SLAPP purposes," citing Applied Business Software, Inc.
v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1117. That case says no such thing.
And well settled law is contrary.
As the Supreme Court put it in Navellier, supra, 29 Cal.4th at p. 92: "As the facts in this lawsuit
illustrate, conduct alleged to constitute breach of contract may also come within constitutionally
protected speech or petitioning. The anti-SLAPP statue's {Slip Opn. Page 24} definitional focus is not
the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her
asserted liability and whether that activity constitutes protected speech or petitioning."
That contract claims can be within the SLAPP procedure is also illustrated by Nygard, Inc. v.
Uusi-Kerttula, supra, 159 Cal.App.4th 1027. There, an employer sued its former employee (and a
magazine) for statements made by the former employee in an interview, alleging five causes of
action: breach of contract, breach of the implied covenant of good faith and fair dealing, interference,
breach of the duty of loyalty, and defamation. (Id. at p. 1033.) The trial court struck the entire complaint
under the SLAPP statute. The Court of Appeal affirmed, holding that the interview was a protected
activity because magazines are public fora within the meaning of Code of Civil Procedure section
425.16, subdivision (e)(3), and the statements concerned an issue of public interest. (Nygard, Inc. v.
Uusi Kerttula, supra, at pp. 1041-1043.)
Third, plaintiff's understanding of what can be considered in connection with the second step in the
SLAPP analysis is also erroneous. That is, plaintiff asserts that "[f]or purposes of the second stage of
the SLAPP test, the Court should look to the allegations of the First Amended Complaint to determine
whether Respondent demonstrates a likelihood of success on the merits." As noted, the first
amended complaint is not before us, and thus irrelevant here. More to the point, plaintiff cannot rely
on his pleading at all, even if verified, to demonstrate a probability of success on the merits. (Pavia v.
Nichols (2008) 168 Cal.App.4th 1007, 1017; Roberts, supra, 105 Cal.App.4th at pp. 613-614.) fn. 8
With that by way of background, and the trial court having sustained the demurrer {Slip Opn. Page 25}
to the third cause of action without leave to amend, we turn to an analysis of the remaining six causes
of action, an analysis we make mindful that plaintiff's burden requires him to demonstrate that the
claim is "legally sufficient." (Navellier, supra, 29 Cal.4th at p. 93.) And conclude that plaintiff has not
demonstrated a likelihood of prevailing on any of them.
The first cause of action is for breach of contract. It contains two paragraphs, as follows:
"47. Encinal basketball coaches are allowed to continue coaching in the absence of good cause for
dismissal. Hecimovich is not aware of any basketball coach not being allowed to continue to coach,
despite various violations of Encinal rules and policies. Hecimovich's proposal to reduce a player's
playing time due to misconduct conformed with Encinal policy, as well as League policy. When Roth
insisted, equivocally, that the policy Hecimovich relied on either did not apply to Encinal, did not apply
to his team, or meant the opposite of what it says, Hecimovich deferred to her decision. The player
was never disciplined in any respect, and Hecimovich did not violate any Encinal or League policy.
"48. As a result of Defendants' actions as set forth above, Hecimovich has suffered general damages
according to proof."
Passing over whether a volunteer coach of a fourth grade basketball team in an after school league
can have an enforceable contract, plaintiff's claim fails, for several reasons. Plaintiff has produced no
evidence demonstrating the formation of any contract--no evidence of offer, acceptance, or
consideration, no evidence from which the terms of any contract could be determined. Beyond that,
he has pleaded no damages compensable in contract (see generally 1 Witkin, Summary of Cal. Law
(10th ed. 2005) Contracts, §§ 869 et seq., p. 956), and has provided no evidence of any damages to
him. (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)
The second cause of action is for violation of the covenant of good faith and fair dealing. To the extent
the claim sounds in contract, it is coextensive with plaintiff's first cause of action. To the extent plaintiff
is alleging a tort claim, it fails, as such a tort exists {Slip Opn. Page 26} only in insurance contracts.
(Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102-103; Sutherland v. Barclays
American/Mortgage Corp. (1997) 53 Cal.App.4th 299, 314.)
The fifth cause of action, for negligence, alleges in pertinent parts as follows:
"66. Hecimovich's complaints to Roth involved Encinal student safety in a District and
Encinal-sponsored activity conducted on Encinal school property. Defendants have a heightened
standard of care with regard to providing safe premises and maintaining policies sufficient to ensure
student safety. [¶] . . . [¶]
"68. Burke's decision to bar Hecimovich from coaching based on Roth's reports, and her failure to
discover the inaccuracy and inadequacy of those reports, was similarly negligent in that Burke had a
duty to address student safety issues in her capacity as PTO basketball coordinator.
"69. Perri's decision to bar Hecimovich from coaching based on Roth's and Burke's reports, and her
failure to discover the inaccuracy and inadequacy of those reports, was similarly negligent in that
Perri had a duty to address student safety issues in her capacity as PTO President.
"70. As a result of defendants' actions as set forth above, Hecimovich has suffered general and
special damages according to proof. . . ."
Any claim by plaintiff would fail because he did not plead a duty to him for so-called "safety issues."
(Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Likewise because plaintiff has shown no
damages. (Anschutz Entertainment Group, Inc. v. Snepp, supra, 171 Cal.App.4th at p. 643.)
The sixth cause of action is for fraud. It alleges as follows:
"72. Roth, Burke and Perri dissuaded Hecimovich from taking legal action regarding their decision to
ban him from coaching during the 2009-2010 season by representing that they would fairly review
that decision and would fairly consider him for future seasons. Perri represented that an impartial
investigation was required and that she would conduct such an investigation. After convincing
Hecimovich to refrain from challenging the PTO's actions, Perri never conducted such an
investigation. Hecimovich {Slip Opn. Page 27} is informed and believes that Perri never intended to
do so.
"73. As a result of defendants' actions as set forth above, Hecimovich has suffered general and
special damages according to proof. Hecimovich has also suffered and continues to suffer damages
to his reputation, according to proof. Hecimovich is also entitled to recover his reasonable attorneys'
fees in bringing this matter to trial."
Plaintiff's pleading fails because he has failed to allege with the requisite specificity " ' "facts which
show how, when, where, to whom, and by which means the representations were tendered." ' "
(Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Moreover, as we understand the so-called
misrepresentations, they were made to dissuade plaintiff "from taking legal action." He has, of
course, taken the action, and so there is no reliance on the claimed representation, a necessary
element of a fraud claim. (CACI No. 1900) And, again, there is no evidence of compensable damage.
(Anschutz Entertainment Group, Inc. v. Snepp, supra, 171 Cal.App.4th at p. 643.)
The seventh cause of action, for intentional infliction of emotional distress, requires several things
missing here. First, the complained of conduct must be outrageous, that is, beyond all bounds of
reasonable decency. (Cervantez v. J.C. Penny Co. (1979) 24 Cal.3d 579, 593; Rest.2d Torts, § 46,
com. d, pp. 72-73 ["no occasion for the law to intervene in every case where some one's feelings are
hurt"].) Second, the conduct must result in severe emotional distress. (Agarwal v. Johnson (1979) 25
Cal.3d 932, 946.) And third, the tort calls for intentional, or at least reckless, conduct. (5 Witkin,
Summary of Cal. Law, supra, Torts, § 453, p. 672.) None of these is evidenced here.
The eighth cause of action, labeled by plaintiff as "negligent infliction of emotional distress," does not
even exist. "The negligent causing of emotional distress is not an independent tort but the tort of
negligence, involving the usual duty and causation issues. Recovery is generally allowed where there
is physical impact. (See e.g., Di Mare v. Cresci (1962) 58 Cal.2d 292, 297, 300 [fall injuring hip and
leg, leaving plaintiff suspended in air and causing emotional trauma]; . . . Lawson v. Management
Activities (1999) 69 Cal.App.4th 652, 656 [policy of designating tort as negligent {Slip Opn. Page 28}
infliction of emotional distress often incorrectly results in its being treated as independent tort].)" (6
Witkin, supra, Summary of Cal. Law, Torts, § 1004, p. 270.)
DISPOSITION
The order denying the SLAPP motion is reversed, and the matter remanded with instructions to: (1)
enter an order granting the motion, and (2) hold a hearing, following further briefing, to award
defendants the attorney fees to which they are entitled under section 425.16.
Kline, P.J., and Haerle, J., concurred.
FN 1. As Witkin distills the pleading rule, "It is sometimes said to be a requirement, and it certainly is
the common practice, to plead the exact words or the picture or other defamatory matter. The chief
reason appears to be that the court must determine, as a question of law, whether the defamatory
matter is on its face or capable of the defamatory meaning attributed to it by the innuendo. Hence, the
complaint should set the matter out verbatim, either in the body or as an attached exhibit." (5 Witkin,
Cal. Procedure (5th ed. 2008), Pleading, § 739, p. 159.)
FN 2. Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
FN 3. The tentative ruling is not in the record.
FN 4. We also note that plaintiff's attempt to add this material does not comply with California Rules
of Court, rule 8.252(a) or Evidence Code section 459.
FN 5. Among other things, plaintiff describes defendants' brief as spending "four pages comparing
[plaintiff] to the child molester in Terry," and asserts that defendants' "attempt to analogize [plaintiff's]
conduct to the conduct in Terry is shameless and repulsive, and highlights the seemingly endless
capacity of ignorant people to say ignorant things." Then, after a brief statement of his description of
Terry, plaintiff ends with this: "Here, by contrast, the only persons who displayed wanton disregard for
child safety are Roth, who received [plaintiff's] report of unsafe playing conditions in February 2009
but elected to ignore the complaint so as not to disturb a wealthy parent, and Liner, who elected to
defer to Roth rather than exercise her prerogative as Encinal School Principal and member of the
PTO Board to reverse Roth's misguided priorities in the interest of child safety."
FN 6. Civil Code section 45 provides: "Libel is a false and unprivileged publication by writing, printing,
picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure
him in his occupation."
Civil Code section 46 provides: "Slander is a false and unprivileged publication, orally uttered . . .
which:
"1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
"2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
"3. Tends directly to injure him in respect to his office, profession, trade or business, either by
imputing to him general disqualification in those respects which the office or other occupation
peculiarly requires, or by imputing something with reference to his office, profession, trade, or
business that has a natural tendency to lessen its profits;
"4. Imputes to him impotence or a want of chastity; or
"5. Which, by natural consequence, causes actual damage."
FN 7. Interestingly, despite plaintiff's occasional attributions to his assistant coach Picciotto, plaintiff's
brief acknowledges that "both parties' characterizations of Picciotto's statements are subject to being
stricken as hearsay, an objection both parties made at hearing." As to this, plaintiff is correct.
FN 8. Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289-1290, does state to the contrary. We note
that Salma has not been followed by any other published decision, and that every other case holds to
the contrary. We disagree with Salma, as apparently does the leading practical treatise: "Comment:
The anti-SLAPP statute should be interpreted to allow the court to consider the 'pleadings' in
determining the nature of the 'cause of action'-i.e., whether the anti-SLAPP statute applies. But
affidavits stating evidentiary facts should be required to oppose the motion (because pleadings are
supposed to allege ultimate facts, not evidentiary facts)." (Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2011) ¶ 7.1021.1, p. 7(II)-48.)
Organization (2012) , Cal.App.4th
[No. A130852. First Dist., Div. Two. Feb. 9, 2012.]
LAWRENCE HECIMOVICH,
Plaintiff and Respondent,
v.
ENCINAL SCHOOL PARENT TEACHER ORGANIZATION et al.,
Defendants and Appellants.
(Superior Court of San Mateo County, No. CIV498362, Gerald J. Buchwald, Judge.)
(Opinion by Richman, J., with Kline, P.J., and Haerle, J., concurring.)
COUNSEL
Kirtland & Packard, Robert A. Muhlbach, Robert K. Friedl, and Jennifer Boldi for
Defendants and Appellants.
Lawrence Hecimovich, in pro. per. for Plaintiff and Respondent.
OPINION
RICHMAN, J.-
A recent Google search for "youth sports" showed 379,000,000 results. "Safety in
youth sports," 66,800,000. "Problem parents in youth sports," 21,600,000. And
"problem coaches in youth sports," 108,000,000. Subjects of tremendous interest.
Plaintiff Lawrence Hecimovich, by profession an attorney, was in 2008-2009 the
volunteer basketball coach of a fourth grade basketball team in the after school
program in Menlo Park. A discipline problem arose with one of the players on his team,
and plaintiff's attempts to resolve the issue with the boy's parents only exacerbated the
situation, to the point, plaintiff claimed, that the parents were "rallying team parents to
remove" him. Plaintiff then involved the volunteer league commissioner, who involved
other league officials. This led to an extensive review of the matter--and numerous
emails--the upshot of which was that plaintiff was told he would not be allowed to coach
the following year and a suggestion that, when he return, it be to coach older children.
Plaintiff's response was this lawsuit.
Representing himself, plaintiff filed a complaint against four defendants, the parent
teacher organization and three volunteers involved in running the after school program,
a complaint that purported to allege eight causes of action. Defendants filed an
anti-SLAPP motion, asserting that the lawsuit dealt with an issue of public interest and
that plaintiff could not demonstrate a likelihood of prevailing on the merits. The trial
court observed that the "gravamen" of plaintiff's complaint was defamation, and went on
to hold that defamation cannot be protected activity within the anti-SLAPP analysis. The
court thus denied the motion under the first step of the analysis, and did not reach step
two.
Defendants appeal, and we review the matter de novo, concluding first that
defamation can be protected activity and that plaintiff's lawsuit arose out of an
issue of public interest. And we go on--at plaintiff's express invitation--to decide the
second step, and hold that plaintiff has failed to demonstrate a likelihood of prevailing
on the merits. We thus reverse, with instructions to enter an order granting the motion
to strike, and to hold a hearing to determine the attorney fees to which defendants are
entitled for their success in having the lawsuit stricken.
INTRODUCTION
We begin with a general description of what plaintiff's lawsuit is about, as alleged in the
"Summary of Claims" in paragraph six of his verified complaint:
"6. Hecimovich was the volunteer basketball coach for an Encinal School fourth grade
team in the City of Menlo Park Community Services AfterSchool Basketball Program
during the 2008-2009 school year. Throughout the early part of the year, a player on
the team engaged in behavior that went beyond disruption to posing a serious risk to
his own safety and the safety of other players. That conduct included but was not
limited to kicking and throwing basketballs at the gym lights, clock and fire alarm in an
effort to break them; throwing or kicking balls at other players or other players'
basketballs to disrupt their shooting or dribbling; and disappearing without notice
during practices, including the final incident lasting half an hour. Hecimovich brought
these issues to the attention of the player's parents numerous times and was at first
ignored, then met with extreme anger and hostility, allegations that Hecimovich was
discriminating against the player, and the threat that the parent had rallied and would
continue to rally team parents to remove Hecimovich. When Hecimovich informed {Slip
Opn. Page 3} Encinal Basketball Coordinator Julie Roth of these developments, Roth
refused to allow Hecimovich to take any action to address the situation, despite the fact
that it clearly would not improve, lacking parent support. Roth . . . insisted, contrary to
written policy, that a coach could not reduce a p[l]ayer's minutes due to misconduct.
When Hecimovich informed Roth that the risk to player safety, the disruption to
practices and the impact on team cohesiveness was unacceptable and would not be
allowed under the rules of [American Youth Soccer Organization] or other youth
organizations, Roth accused him of 'unnecessarily escalating the situation' and
threatened various punishments, including removing him as a coach. The following
year, Roth, together with her successor, Leslie Burke, and PTO President Kelly Perri,
found Hecimovich unfit to coach and permanently barred Hecimovich from participating
in the Encinal League."
As will be seen, defendants take issue with certain of the specific accusations in
plaintiff's summary, and also with the description of what was ultimately said to plaintiff.
But defendants take no issue with the background that generated the communications
and the dispute here: the conduct of a kid on a fourth grade basketball team, his
parents' and his coach's reactions to it, and the ultimate resolution of the situation.
BACKGROUND
Plaintiff's Complaint
On August 27, 2010, representing himself, plaintiff filed a verified complaint for
damages, including punitive damages. It named four defendants, identified by plaintiff
as follows: Encinal School Parent Teacher Organization (PTO), a non-profit
organization; Kelly Perri, PTO President during the 2009-2010 school year; Julie Roth,
PTO Basketball Commissioner during the 2008-2009 school year; and Leslie Burke,
Basketball Commissioner during the 2009-2010 school year and currently (when
referred to collectively, defendants). The complaint alleged eight causes of action,
each against all defendants, styled by plaintiff as follows: (1) breach of contract; (2)
breach of the covenant of good faith and fair dealing; (3) retaliation in violation of
public policy; (4) libel and slander; (5) negligence; (6) fraud; (7) intentional infliction of
emotional distress; and (8) negligent infliction of emotional distress. {Slip Opn. Page 4}
The complaint was 20-pages long, with 88 paragraphs. The first five paragraphs
identified the parties; paragraph 6 was plaintiff's summary of claims quoted above;
paragraphs 7 through 45 were plaintiff's "factual allegations"; and the remaining
paragraphs purported to allege the essential elements of the eight causes of action
identified above. Significantly, all 39 "factual allegations" were incorporated into each of
the eight causes of action, perhaps most significantly the final factual allegation,
paragraph 45: "Hecimovich, who has coached soccer (along with basketball and
baseball) each of the last five years and intended to coach throughout his sons'
adolescence, has not coached again based on the defamation and other unlawful
conduct he experienced from defendants, and will not be able to coach until defendants
acknowledge their deceit and clear his reputation."
Interestingly, at no point--not in paragraph 45, not in the cause of action for "libel and
slander"--did plaintiff even attempt to allege what he claimed to be the defamatory
communication(s). fn. 1
The Motion to Strike
On October 13, 2010, defendants filed a special motion to strike pursuant to Code of
Civil Procedure section 425.16. fn. 2 The motion argued that: (1) the conduct alleged in
plaintiff's complaint was "in connection with a public issue or an issue of public interest,"
as it involved communications between a parent-teacher organization and parents
concerning plaintiff's coaching of young children; and (2) plaintiff would not be able to
show a likelihood of prevailing on the merits. {Slip Opn. Page 5}
The motion was supported by declarations of the three individual defendants, Perri,
Roth, and Burke, each of whom testified to their involvement with plaintiff and/or the
brouhaha that ensued. As developed in more detail below, this testimony included
problems with plaintiff and his coaching style; the welfare of the young players; and
what Perri, for example, described as her conclusion: "[B]ased on my responsibilities
and authority as president of the Encinal School Parent Teacher Organization, that it
would be prudent and appropriate to advise Coach Hecimovich that he would not be
able to coach in the program for at least one year. I simply did not believe that Coach
Hecimovich [sic] coaching style, based on my investigation, was appropriate for young
grammar school children. I so advised Coach Hecimovich and indicated that after one
year, I would consider allowing him to, once again, coach in the program." The three
declarations also testified that all communications in which the declarants participated
regarding plaintiff and his coaching were made without malice and to "interested
persons."
On November 1, 2010, plaintiff filed his opposition to the motion, consisting of a
14-page memorandum of points and authorities and his 16-paragraph declaration. He
filed no declarations from any third persons. Plaintiff's declaration had attached nine
exhibits which, according to him, were copies of the following: the basketball league
policies Roth distributed to coaches; four emails from plaintiff, one to the parents of the
young player involved, one to all team parents, one to Perri, and one to Burke; two
emails from Burke, one to plaintiff and one to Perri; and a grouping of several emails
from Perri, including one sent to all parents.
On November 9, 2010, defendants filed their reply. Along with it, they filed objections to
plaintiff's declaration, objecting to portions of his declaration identified by page and
line, generally on the grounds of hearsay and lack of foundation.
The Demurrer
Defendants had also filed a demurrer, which was scheduled to be heard on November 29, the same
day as the motion. {Slip Opn. Page 6}
The Hearing on the Motion
The court had issued a tentative ruling on the motion, apparently denying it. fn. 3 Defendants
contested it, and the result was a relatively brief argument, which began with the court noting what its
"thinking was here," which was this: "[Its] view was that there were some allegations that suggested
that claim here has to do with some false statements that were made about . . . the plaintiff's
performance and that that was why he wasn't able to coach anymore. [¶] . . . [¶] And so, even though it
isn't pled as a defamation claim it, you know that's what the allegations sound in if I can use an old
expression that we used to have."
Brief argument followed, with counsel for defendants citing authority for their position, after which the
court turned to plaintiff to see what he "has to say here." After addressing the primary case relied on
by defendants, plaintiff went on as follows:
"Secondly, the notion that anything somehow involves children or somehow involves a school raises
an issue of free speech on a matter of critical public importance that would completely open up every
case to a SLAPP motion. There would no longer be any lawsuits involving education or children or
government or anything else in that whole domain.
"Certainly, that is not the law and I think in the opposition I have cited a host of cases that it's
defendants' burden of showing that the gravamen of my claims which are, I think your Honor's
comment about it being sounding [in] defamation comprises an attack on specific efforts to engage
in free speech not significant public issues. And that is the case of Wang v. Wal-Mart, 153 Cal.App.4th
790. Clearly that's not what is at issue here.
"What is at issue here is a very internal policy matter. There is a written policy that says that a coach
could discipline children who engage in misconduct. The commissioner, upon being told a coach
wants to discipline a child is engaged in misconduct like limiting playing time, says, 'No, that is not
the policy. That policy doesn't apply to us.' " {Slip Opn. Page 7}
Counsel for defendants responded, principally focusing on the communications, all made in the
context of decisions that "impacted a number of children and their parents." Plaintiff briefly
responded, observing that if the court were to look, for example, at Roth's declaration, "this entirely
relates to a complaint raised by the coach, that being me, about a need to implement discipline
based upon student misconduct and Ms. Roth disagreed with that approach."
The court then said it was prepared to rule, and went on as follows:
"My view on it really doesn't rest so much on [the extent of the communications] and I am aware of
this, of the language in the statute that talks about activity that is done in connection with a matter of
public interest, but if what you say is true then would it mean that we could never have a defamation
lawsuit against a public figure in California and the standards of New York Times v. Sullivan being
invoked and the problem I have with the . . . motion is that it's clear that the complaint sets out alleged
defamation of character. And even if that is activity that is connected with freedom of speech, that kind
of speech has never been protected by the First Amendment. And so, and that has been the case
since at least the 1920's. The United States Supreme Court has held to that view. The California
Supreme Court is held to that view and it seems to me that given what the claim here actually is,
leaving aside some of the problems with the pleadings that I have noted. If you look at the essence of
the claim, it's that there were false statements being publicly made that were published and this is a
remedy, this special motion to strike is a remedy that was designed and is intended to protect
protected speech not unprotected speech."
Counsel for defendants disagreed, to no avail, and the remainder of the brief hearing dealt with the
court's oral rulings on defendants' objections to evidence, which apparently were all "overruled" in the
tentative ruling, but with no grounds given.
At the conclusion of the hearing, the court confirmed the basis of its ruling: "Because the basis of the
claim is purported defamation that it's not a claim as to which the special motion to strike applies
because defamation by its definition is something that for years has been held not to be protected by
the first amendment and in order for you to {Slip Opn. Page 8} make a threshold showing you have
got to show that there is a connection to some protected First Amendment activity and that showing
isn't made here."
On January 7, 2011, the court filed its two-page order, the substance of which provided in its entirety
as follows:
"1. The Motion to Strike by Defendants pursuant to C.C.P. § 425.16 is denied. The Court finds that
Defendants failed to meet their burden of showing that Plaintiff [sic] claims arises [sic] from
Defendants' exercise of free speech or petition rights as defined by C.C.P. § 425.16. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) A fair reading of the Complaint is that
the gravamen of Plaintiff's claim is a purported defamation of character, something that, if true, is not
protected by the First Amendment,
"2. The Defendants [sic] objections to the Declaration of Lawrence Hecimovich are overruled. Specific
grounds for the Court overruling these objections was set forth, on the record, during the hearing on
the subject motion.
"3. Plaintiff's request for judicial notice of certain documents is denied."
On January 7, 2011, defendants filed their notice of appeal.
The Demurrer and the Amended Complaint
As indicated above, defendants had also filed a demurrer. As to it, the court sustained the demurrer
to all eight causes of action in the complaint, without leave to amend as to the third cause of action,
and with leave to amend as to the other seven.
On December 8, 2010, and before defendants filed their notice of appeal, plaintiff filed his verified first
amended complaint for damages.
Plaintiff's Motion to Augment
In his brief to us, plaintiff chastises defendants for "improperly omit[ting] from the record plaintiff's first
amended complaint filed December 8, 2010, one month before the appeal." And on July 6, 2011,
plaintiff filed a motion to augment the record on appeal, to include (1) the first amended complaint,
and (2) a copy of a January 2011 article from an online newspaper, The Almanac Online, entitled
"Encinal Coach's Lawsuit Ruling Appealed," along with online comments about the article.
Defendants opposed the {Slip Opn. Page 9} motion, and on July 14 we ordered that we would take
the motion under submission and decide it with the merits of the appeal.
On September 9, 2011, plaintiff filed what he called a "Supplemental Memorandum and Post- Motion
Evidence in Support of His Motion to Augment the Record." This sought to augment the record to
"reflect [plaintiff's] efforts to obtain discovery" concerning the "authorship of the defamatory January
2011 online articles," which discovery was disallowed by the trial court.
We now deny the motion to augment.
The reason plaintiff sought to add the first amended complaint was, in his words, for "the sole
purpose of adjudicating the second prong of the anti-SLAPP test--assessing [plaintiff's] likelihood of
success on the merits. [Plaintiff] cited to Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870-871.
Nguyen-Lam is directly on point." Nguyen-Lam is not on point. Roberts v. Los Angeles County Bar
Assn. (2003) 105 Cal.App.4th 604 is.
Roberts was, as here, an appeal from a denial of a SLAPP motion. And plaintiff Robert's first
contention was that the appeal was "moot, frivolous, and should be dismissed because prior to the . .
. filing of the notice of appeal she filed a second amended complaint, which is now the operative
pleading." (Roberts v. Los Angeles County Bar Assn., supra,105 Cal.App.4th at p. 612 (Roberts).)
Rejecting that claim, the court held that "An implied stay in the proceedings where the plaintiff files an
amended complaint prior to the defendant's appeal of the denial of a SLAPP motion to strike is
necessary so that a plaintiff cannot deprive a defendant of the right to the appellate review granted by
the Legislature so that the appellate court can determine if the defendant had made a prima facie
showing. [¶] There would be little benefit in a right to appeal if the plaintiff could get around appellate
review by filing an amended pleading. Nor would a competitive rush to the courthouse fulfill the
legislative purpose of a quick and inexpensive method of unmasking and dismissing SLAPP suits."
(Id. at p. 613; accord, Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 [appeal from
grant of SLAPP motion].) {Slip Opn. Page 10}
Nguyen-Lam v. Cao, the case relied upon by plaintiff, is not to the contrary. There, the trial court had
entered an unusual order, described by the Court of Appeal as follows: "The trial court couched its
ruling as an order granting defendant's motion to strike, but with leave for plaintiff to amend her
complaint to cure any deficiency concerning actual malice. . . . But authorizing an amendment under
these circumstances is tantamount to denying the strike motion, and we therefore reach the propriety
of the ruling based on defendant's challenge." (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp.
869-870.) The court went on to affirm the denial of the SLAPP motion, pointedly noting that it did so
because the evidence showing that plaintiff could prevail on the merits was before the trial court at
the time of the motion: "True, a plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion
by filing an amended complaint (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004)
122 Cal.App.4th 1049) but where, as here, the evidence prompting amendment is found in the
declarations already submitted for the hearing, there is no risk the purpose of the strike procedure
will be thwarted with delay, distraction, or increased costs. (Cf. ARP Pharmacy Services, Inc. v.
Gallagher Bassett Services, Inc. (2006) 138 Cal.App.4th 1307, 1323 [plaintiff cannot amend pleading
to avoid pending anti-SLAPP motion]); Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772 [plaintiff
cannot use " 'eleventh-hour amendment' " to plead around anti-SLAPP motion].)" (Nguyen-Lam v.
Cao, supra, 171 Cal.App.4th at pp. 871-872.) In short, the court concluded, "the trial court did not err in
permitting plaintiff to amend her complaint to plead actual malice in conformity with the proof
presented at the hearing on the strike motion." (Id. at p. 873.)
This, of course, is not the setting here, and the first amended complaint has no place before us, as
plaintiff at one point apparently concedes, observing that "the original complaint remains the
operative pleading for purposes of assessing whether [defendants] engaged in protected activity
subject to the SLAPP statute."
As to the January 2011 online newspaper article and the numerous comments that followed it--all
published after the appeal was filed--they have nothing to do with the {Slip Opn. Page 11} two issues
involved in the SLAPP analysis. fn. 4 Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005,
cited by plaintiff in his reply brief for the proposition that "nothing in the statute or case law suggests
that the factual analysis for ruling on the motion must be frozen in time on the date the complaint is
filed," is easily distinguishable. Slauson held that a trial court ruling on a SLAPP motion--there, in a
case involving an injunction--could rely on postcomplaint evidence in ruling on the motion. (Id. at p.
1021.) Not postappeal evidence.
In sum, we analyze the matter based on plaintiff's complaint and the papers filed below in connection
with the SLAPP motion, an analysis to which we now turn.
DISCUSSION
SLAPP Law and the Standard of Review
Subdivision (b)(1) of section 425.16 provides that "[a] cause of action against a person arising from
any act of that person in furtherance of the person's right of petition or free speech under the United
States or California Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim." Subdivision (e) elaborates the four types of acts
within the ambit of a SLAPP, including, as pertinent here, "(4) any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest."
A two-step process is used for determining whether an action is a SLAPP. First, the court decides
whether the defendant has made a threshold showing that the challenged cause of action is one
arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff's
complaint fits one of the categories spelled out in section 425.16, subdivision (e). If the court finds
that such a showing has been made, it {Slip Opn. Page 12} must then determine the second step,
whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten
(2002) 29 Cal.4th 82, 88 (Navellier).)
"The Legislature enacted section 425.16 to prevent and deter 'lawsuits [referred to as SLAPP's]
brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances." (§ 425.16, subd. (a).) Because these meritless lawsuits seek
to deplete 'the defendant's energy' and drain 'his or her resources' [citation], the Legislature sought '
"to prevent SLAPPs by ending them early and without great cost to the SLAPP target" ' [citation].
Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the
lawsuit using a summary-judgment-like procedure at an early stage of the litigation." (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
Finally, and as subdivision (a) of section 425.16 expressly mandates, the section "shall be construed
broadly."
With these principles in mind, we turn to a review of the issues before us, a review that is de novo.
(Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988 (Grewal).)
Defamation Suits Can Be Within SLAPP
As noted, the first step in the SLAPP analysis is to determine whether the lawsuit is within one of the
four descriptions of protected activity in subdivision (e) of section 425.16. The trial court held it was
not, because it sounded in defamation which, the court held, is not--and apparently can never
be--protected activity. Such holding was wrong.
Numerous cases have made the SLAPP analysis in defamation cases, as manifest by the five pages
of cases discussed in Notes 29 through 35 of the annotations to section 425.16 in West's Annotated
Codes. (See Notes of Decisions, 14B West's Ann. Code Civ. Proc. (2004), foll. § 425.16, pp.
413-418.) Indeed, as our colleagues in Division One confirmed in the course of a lengthy discussion
of the history and purpose of the SLAPP procedure, defamation is the very first of the " 'favored
causes of action in SLAPP suits.' " (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 890; accord, {Slip
Opn. Page 13} Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1400,
fn. 9 [" 'The favored causes of action in SLAPP suits are defamation . . . .' "].)
As another Court of Appeal observed, " 'defamation suits are a prime target of SLAPP motions. [¶] . . .
The Legislature did not intend that in order to invoke the special motion to strike the defendant must
first establish her actions are constitutionally protected under the First Amendment as a matter of
law. If this were the case then the inquiry as to whether the plaintiff has established a probability of
success would be superfluous." (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404,
419-420, citing Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305.) In short, the
basis on which the trial court denied the motion was wrong.
But that does not end the inquiry, as we must determine on our de novo review whether plaintiff's
lawsuit involves an "issue of public interest."
Plaintiff's Lawsuit Involves an Issue of Public Interest
Like the SLAPP statute itself, the question whether something is an issue of public interest must be "
' "construed broadly." ' " (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23; Rivera v. First DataBank, Inc.
(2010) 187 Cal.App.4th 709, 716 (Rivera).) An " 'issue of public interest' " is " 'any issue in which the
public is interested.' " (Id. at p. 716, quoting Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027,
1042.) A matter of " ' "public interest should be something of concern to a substantial number of
people. [Citation.] . . . [T]here should be some degree of closeness between the challenged
statements and the asserted public interest [citation] . . . . [T]he focus of the speaker's conduct should
be the public interest . . . ." ' [Citation.] Nevertheless, it may encompass activity between private
people." (Rivera, supra, 187 Cal.App.4th at p. 716.)
We look for "the principal thrust or gravamen of plaintiff's cause of action." (Martinez v. Metabolife
Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) We " 'do not evaluate the first prong of the anti-SLAPP
test solely through the lens of a plaintiff's cause of action.' " (Stewart v. Rolling Stone LLC (2010) 181
Cal.App.4th 664, 679.) The "critical consideration" is what the cause of action is "based on."
(Navellier, supra, 29 Cal.4th at p. 89.) {Slip Opn. Page 14}
Applying those principles here leads easily to the conclusion that the communications and conduct
about which plaintiff complains were in connection with an issue of public interest.
We begin with the "factual allegations" in plaintiff's complaint, the first of which refer to Roth, and her
involvement with plaintiff in connection with a problem he had with his young player and the player's
parents. These allegations confirm that the issue included the parents telling Roth that in their
opinion plaintiff posed a danger to their child's physical safety. In fact, plaintiff himself stated that he
"could not coach a player whose parents considered [plaintiff] unsafe."
The next factual assertions, those concerning Burke, involve statements attributed to her in her
capacity as the PTO Basketball Commissioner, all concerning plaintiff's problems with the player and
his parents. These include a recitation of alleged conversations between Burke and plaintiff's
assistant coach Picciotto, a communication from Burke to Perri to the effect that respondent was
"bullying two moms," and the decision to "remove" him as a coach.
The next allegations are about Perri, again of conduct and statements attributed to her in an official
capacity as PTO President. And these allegations conclude with the statement, "Perri determined that
Hecimovich was unfit to coach and informed Hecimovich's team parents of that conclusion." In short,
plaintiff's own complaint concedes that the communications in issue here concern the well-being of
young children in an after school sports program, as discussed between and among members of
the PTO, parents of the young team members, and league officials.
As noted above, the declarations of individual defendants Roth, Perri, and Burke confirm in great
detail that the issue with the player and plaintiff's fitness to coach young players was the basis of the
dispute. And plaintiff's own declaration makes the point graphically, with 15 of his 16 paragraphs
describing the dispute in detail. These paragraphs include plaintiff's sworn testimony that the player's
parents were alleging that plaintiff was "discriminating against the players"; that assistant coach
Picciotto had been told by Burke that a player's father had "filed a formal written complaint insisting
that {Slip Opn. Page 15} [plaintiff] not be allowed to coach again, and that Roth had reported that
[plaintiff] had used improper disciplinary tactics against the player"; and that Perri contacted parents
of the players to "inform them that the PTO had banned [plaintiff] from coaching (head or assistant
coach) due to what was considered unacceptable conduct coaching their sons."
This is an issue of public interest.
Defendants relied below, and rely here, on Terry v. Davis Community Church (2005) 131 Cal.App.4th
1534 (Terry), where the essence of plaintiffs' complaint was that they were falsely accused of having
an inappropriate sexual relationship with a minor female in their work as church youth group leaders.
(Id. at p. 1538.) The evidence showed that parents had complained about the plaintiffs' dealings with
the minor, which prompted a church investigation, the result of which was a confidential report of the
church describing an inappropriate relationship with the minor. (Id. at pp. 1539-1542.) The report was
then discussed among interested church members, first in a February 19, 2004 closed meeting of
church officials and then at "two meetings on February 22, 2004, with parents of youth group
members. The Church had received many inquiries from parents and concluded they had a right to
know about the investigation. Defendants distributed copies of the report at the meetings and took
care to collect all copies as the meetings ended. About 100 people saw the report." (Id. at p. 1543.)
Plaintiffs sued the church, the pastor, and church leaders for libel, slander, and intentional and
negligent infliction of emotional distress, and sought injunctive relief after the distribution of the report
at the meetings. Defendants responded with a SLAPP motion, which the trial court granted. The Court
of Appeal affirmed, finding that "the communications clearly involved issues of public interest,
because they involved the societal interest in protecting a substantial number of children from
predators." (Terry, supra, 131 Cal.App.4th at pp. 1538-1539, 1547.) Doing so, the court first rejected
the argument that the case involved only matters of private interest: "Plaintiffs characterize the issue
in this case as a private relationship between George Terry and the girl. Not so. The issue as to
whether or not an adult who interacts with minors in a church youth program has engaged in an
inappropriate relationship with any of the minors is clearly a {Slip Opn. Page 16} matter of public
interest. The public interest is society's interest in protecting minors from predators, particularly in
places such as church programs that are supposed to be safe. It need not be proved that a particular
adult is in actuality a sexual predator in order for the matter to be a legitimate subject of discussion."
(Id. at p. 1547.)
And the court went on: "Here, the broad topic of the report and the meetings was the protection of
children in church youth programs, which is an issue of public interest. This is not to say that George
Terry in fact molested the girl. Rather, George Terry's actions in engaging in a secretive and
inappropriate relationship with the girl gave the Church and parents of youth group members cause
for concern and opened for discussion the topics of whether other children were affected and how to
prevent such inappropriate relationships." (Terry, supra, 131 Cal.App.4th at p. 1548.)
Plaintiff says nothing in any attempt to distinguish the holding or reasoning or Terry, contenting
himself with criticism of defendants for their reliance on the case and taking umbrage at being
equated with a child molester. fn. 5 That, of course, is not the point. The point is that, like the safety of
children issue in Terry, the safety of children in sports is also an issue of public interest--which issue,
as shown by plaintiff's own pleading and declaration, was at the heart of his dispute with defendants.
Indeed, it would appear that plaintiff essentially agrees that the suitability of his coaching style was a
matter of public interest among the parents. As plaintiff testified, he himself urged the team parents to
join in an investigation of his suitability to coach the {Slip Opn. Page 17} young players because it
involved "the well being of our kids." In his words: "Please, if you would, take the time to answer
[Perri's] questions fully and truthfully, and don't hold anything back on the grounds that it might be
hurtful to me. I think that if the PTO wants to ensure the well being of our kids (at least in this one,
highly-selective occasion) everyone should be forthcoming."
As noted, plaintiff has requested that we augment the record to include, among other things, a
January 2011 article in The Almanac Online about the lawsuit and numerous follow up comments
about it. While we decline the request to augment, we do note that the scope and breadth of the
comments, not to mention the article itself, show just how much the public was interested in the
issue.
In sum, we conclude that safety in youth sports, not to mention problem coaches/problem parents in
youth sports, is another issue of public interest within the SLAPP law. (See, also, Sipple v.
Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 236-240 [domestic violence]; M.G. v. Time
Warner, Inc. (2001) 89 Cal.App.4th 623 [molestation in youth sports]; Nagel v. Twin Laboratories, Inc.
(2003) 109 Cal.App.4th 39 [dietary supplement]; Wilbanks v. Wolk, supra, 121 Cal.App.4th at p.
898-899 [quality of seller's products]; Terry, supra, 131 Cal.App.4th at p. 1547 [protection of children
from predators]; Gilbert v. Sykes, supra, 147 Cal.App.4th 13 [plastic surgery]; and McGarry v. University
of San Diego (2007) 154 Cal.App.4th 97 [firing of college football coach].)
Plaintiff Has Failed to Demonstrate a Likelihood of Prevailing on the Merits
The second step in the SLAPP analysis is to determine whether plaintiff has shown a probability of
prevailing on the claim. Here, because the trial court found, however erroneously, that plaintiff's
lawsuit was not within the SLAPP statute, it did not reach step two. Nevertheless, we can decide the
issue (see Roberts, supra, 105 Cal.App.4th at pp. 615-616) and, in fact, plaintiff "asks [us] to address
the likelihood of success on the merits prong on the anti-SLAPP test." We thus decide step two. And
conclude that plaintiff has failed to meet his burden. {Slip Opn. Page 18}
Introduction to Analysis
We confirmed the applicable law in Grewal, supra, 191 Cal.App.4th at p. 989: "We decide the second
step of the anti-SLAPP analysis on consideration of 'the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).) Looking
at those affidavits, '[w]e do not weigh credibility, nor do we evaluate the weight of the evidence.
Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence
only to determine if it defeats the plaintiff's submission as a matter of law.' (Overstock.com, Inc. v.
Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700. [¶] That is the setting in which we
determine whether plaintiff has met the required showing, a showing that is 'not high.'
(Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the
Supreme Court, plaintiff needs to show only a 'minimum level of legal sufficiency and triability.'
(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438 fn. 5.) In the words of other courts, plaintiff needs
to show only a case of 'minimal merit.' (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton
LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier v. Sletten[, supra,] 29 Cal.4th 82, 95, fn. 11.)"
While plaintiff's burden may not be "high," he must demonstrate that his claim is legally sufficient.
(Navallier v. Sletten, supra, 29 Cal.4th at p. 93.) And he must show that it is supported by a sufficient
prima facie showing, one made with "competent and admissible evidence." (Tuchscher
Development Enterprisers, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236;
Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.) Plaintiff's demonstration does not measure up.
As noted, the trial court thought the "gravamen" of plaintiff's lawsuit was defamation. Plaintiff
seemingly did not disagree below, as reflected in his argument, where he apparently adopted the
court's analysis. Here, by contrast, plaintiff vigorously disagrees, and asserts that defendants' claim
that defamation is the gravamen of his suit is "manifestly false, rendering their failure to address
[plaintiff's] other causes of action fatal to their appeal." And, plaintiff goes on, "[T]he Complaint makes
clear that {Slip Opn. Page 19} [plaintiff's] principal grievance relates to the baseless decision to bar
him from the Encinal and Hillview programs based on the erroneous insistence that [plaintiff] had
improperly benched a player. In fact, [plaintiff] repeatedly offered to forgive the loss of a season
coaching his sons' teams, withdraw his grievances and forego legal action--first, not to file the
complaint, then, not to serve it, then, to dismiss the complaint and forego damages--if [defendants]
simply allowed him to return to coaching in year two, then, in year three. [Defendants] rejected those
overtures. . . ." Two brief paragraphs follow, the second of which says this: "To pretend that the
Complaint can be reduced to a single theory of injury, and that the gravamen of [plaintiff's] claims
sounds in defamation, is a mere fiction. The court below accepted that characterization so as to
expeditiously deny the motion, since the defamation allegations clearly fall outside the SLAPP statute.
However, had [defendants] not failed miserably in their attempt to strike the defamation allegations,
they would have had to address the remaining claims."
Despite the position urged in his brief, plaintiff did not meaningfully address any of the other claims.
Nor, for that matter, did defendants. We thus requested supplemental briefing on the issue, and with
it proceed to analyze the second step in the SLAPP analysis, beginning with the claim which plaintiff
labels "libel and slander."
The Defamation Claim
As quoted above, paragraph 45 of plaintiff's complaint, incorporated by reference into all other causes
of action, states: "Hecimovich, who has coached soccer (along with basketball and baseball) each of
the last five years and intended to coach throughout his sons' adolescence, has not coached again
based on the defamation and other unlawful conduct he experienced from defendants, and will not
be able to coach until defendants acknowledge their deceit and clear his reputation."
Civil Code section 44 provides that defamation can be of two types, libel or slander. Libel is defined
in Civil Code section 45, slander in section 46. fn. 6 To prevail on a {Slip Opn. Page 20} claim for
defamation, plaintiff must show four elements: that defendants published the statements; that the
statements were about plaintiff; that they were false; and that defendants failed to use reasonable
care to determine the truth or falsity. (CACI No. 1704.)
We begin by noting that we are at a loss to discern just what defamatory communication(s) plaintiff is
complaining about. At no point in his briefing does he specifically identify any particular writing or
utterance; and as will be seen, he has provided no evidence demonstrating a prima facie case of
defamation--indeed, he did not even plead one. (See fn. 1 above.)
Plaintiff's entire pleading of the alleged "libel and slander" is this: "PTO, Roth, Burke and Perri have
knowingly made false statements, separate and apart from their investigatory efforts, if any, in order
to damage Hecimovich's standing in the community. Roth, Burke and Perri's statements were
defamatory per se in that they attributed to Hecimovich immoral qualities including a disregard for the
safety of children that by natural consequence would and have in fact injured Hecimovich's reputation
in the community and his ability to engage in the avocation of his choice." That is it. No specifics. No
reference to what, where, or when. No reference to oral or {Slip Opn. Page 21} written. Nothing.
Plaintiff's declaration is no better. The words "defame" or "defamation" are not even mentioned. And
the only reference to any claimed "falsity" is this: "12. During our meeting Perri conceded that she
was aware of no facts that would support Burke's claim that Hecimovich had attempted to institute
disciplinary tactics against the child that were punitive and against the league's rules and philosophy,
or that he had precluded a parent from enjoying continued participation in the basketball experience.
Picciotto has confirmed that Burke's reasons were false. Perri later confirmed he [sic] conclusion that
Roth and Burke's reasons for banning Hecimovich were false. True and correct copies of Perri's
November 18, 21 and 23, 2009 emails are attached as Exhibit C." fn. 7 Such alleged falsity does not
come within Civil Code section 46.
Plaintiff did allege, however conclusorily, that the PTO and the women volunteers asserted to team
parents that he is "unfit to coach." However, he is not a professional coach, but a lawyer who
volunteered to coach children. The statement does not have a tendency to injure plaintiff in his
profession. Nor expose him "to hatred, contempt, ridicule, or obloquy," or cause him to be "shunned
or avoided."
Plaintiff also alleged, also conclusorily, that the women volunteers defamed him by attributing to him
"immoral qualities including a disregard for the safety of children that by natural consequence would
have and in fact injured [plaintiff's] reputation in the community and his ability to engage in the
avocation of his choice." While such a statement might be defamatory, plaintiff has produced no
evidence of any defendant attributing to plaintiff "immoral qualities including a disregard for the safety
of children."
But even assuming that plaintiff could produce admissible evidence of the essential elements of a
claim for defamation, his claim would fail because of the privilege in Civil Code section 47,
subdivision (c): a "privileged publication . . . is one made . . . {Slip Opn. Page 22} (c) [i]n a
communication, without malice, to a person interested therein, (1) by one who is also interested, or
(2) by one who stands at such a relation to the person interested as to afford a reasonable ground for
supposing the motive for the communication to be innocent, or (3) was requested by a person
interested to give the information."
As noted above, all three defendants testified that all communications by them were to "interested
persons" who either requested the information or were entitled to it. These included school officials,
PTO members responsible for the boys' basketball program, the assistant coach, parents of the child
player, and league parents. Plaintiff provided no contrary evidence.
Furthermore, all three declarants testified to an absence of malice. Again, plaintiff put forth no contrary
evidence, no evidence showing " 'a feeling of hatred or ill will going beyond that which the occasion
for the communication apparently justified . . . .' " (Katz v. Rosen (1975) 48 Cal.App.3rd 1032, 1037.)
To defeat a SLAPP motion, plaintiff must overcome substantive defenses (Gerbosi v. Gaims, Weil,
West & Epstein, LLP (2011) 193 Cal.App.4th 435, 447-448), and his claim would fail for his inability to
show malice, as have the claims of many other plaintiffs who lost SLAPP motions because of such
inability. (See Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 275; Annette F. v. Sharon S. (2004)
119 Cal.App.4th 1146, 1162; Stewart v. Rolling Stone LLC, supra, 181 Cal.App.4th at pp. 689-690;
Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226-227 [malicious prosecution].)
All plaintiff says in response to defendants' privilege argument is this: "[Defendants] cannot possibly
establish that their admittedly false statements and dishonest actions were undertaken in good faith
and without malice. See, e.g., Rancho La Costa Inc. v. Superior Court (1980) 106 Cal.App.3d 646,
cert. denied 450 U.S. 902 (assertion that conditional privilege was apparent from complaint with bare
bones evidentiary submission amounts to claim of carte blanch [sic] application, precise contrary of
what section 47(c) allows)." From there plaintiff goes on with three brief ipse dixit arguments that
"Roth's story," "Burke's story," and "Perri's story" are "inherently self-contradictory and make[] no
sense." That is it. It is insufficient. {Slip Opn. Page 23}
The Remaining Claims Have No Merit
As noted, plaintiff now disagrees as to the gravamen of his lawsuit, and argues that defendants must
also address the other claims as well. As also noted, we have received supplemental briefing about
these claims, and will address them, following a few preliminary observations.
First, whatever their label, as plaintiff's paragraph 45, incorporated into all causes of action, expressly
states, all the causes of action arise from the same fundamental setting--a setting involving an issue
of public interest. Lee v. Fick (2005) 135 Cal.App.4th 89 is instructive. Plaintiff there was a high school
baseball coach who sued the parents of a player who urged school officials to fire the coach. His
complaint included claims for libel, slander, conspiracy to interfere with prospective economic
advantage, and intentional interference with prospective economic advantage. Defendants filed a
SLAPP motion as to these causes of action, which the trial court granted as to one cause of action
and denied as to the others. Both sides appealed. The Court of Appeal reversed in favor of
defendants, noting that the facts alleged to support the two causes of action for libel and slander
were the same as those asserted to support the causes of action for alleged interference with
economic advantage. (Id. at pp. 93, 99; see also Gerbosi v. Gaims, Weil, West & Epstein. LLP, supra,
193 Cal.App.4th at p. 447 [causes of action for intentional infliction of emotional distress, negligence,
malicious prosecution, and abuse of process all arise from same facts].)
Second, plaintiff's understanding of the SLAPP law is erroneous, especially his bold statement that
"breaching a contract is never a protected exercise of free speech or right of petition and hence
cannot constitute a protected activity for anti-SLAPP purposes," citing Applied Business Software, Inc.
v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1117. That case says no such thing.
And well settled law is contrary.
As the Supreme Court put it in Navellier, supra, 29 Cal.4th at p. 92: "As the facts in this lawsuit
illustrate, conduct alleged to constitute breach of contract may also come within constitutionally
protected speech or petitioning. The anti-SLAPP statue's {Slip Opn. Page 24} definitional focus is not
the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her
asserted liability and whether that activity constitutes protected speech or petitioning."
That contract claims can be within the SLAPP procedure is also illustrated by Nygard, Inc. v.
Uusi-Kerttula, supra, 159 Cal.App.4th 1027. There, an employer sued its former employee (and a
magazine) for statements made by the former employee in an interview, alleging five causes of
action: breach of contract, breach of the implied covenant of good faith and fair dealing, interference,
breach of the duty of loyalty, and defamation. (Id. at p. 1033.) The trial court struck the entire complaint
under the SLAPP statute. The Court of Appeal affirmed, holding that the interview was a protected
activity because magazines are public fora within the meaning of Code of Civil Procedure section
425.16, subdivision (e)(3), and the statements concerned an issue of public interest. (Nygard, Inc. v.
Uusi Kerttula, supra, at pp. 1041-1043.)
Third, plaintiff's understanding of what can be considered in connection with the second step in the
SLAPP analysis is also erroneous. That is, plaintiff asserts that "[f]or purposes of the second stage of
the SLAPP test, the Court should look to the allegations of the First Amended Complaint to determine
whether Respondent demonstrates a likelihood of success on the merits." As noted, the first
amended complaint is not before us, and thus irrelevant here. More to the point, plaintiff cannot rely
on his pleading at all, even if verified, to demonstrate a probability of success on the merits. (Pavia v.
Nichols (2008) 168 Cal.App.4th 1007, 1017; Roberts, supra, 105 Cal.App.4th at pp. 613-614.) fn. 8
With that by way of background, and the trial court having sustained the demurrer {Slip Opn. Page 25}
to the third cause of action without leave to amend, we turn to an analysis of the remaining six causes
of action, an analysis we make mindful that plaintiff's burden requires him to demonstrate that the
claim is "legally sufficient." (Navellier, supra, 29 Cal.4th at p. 93.) And conclude that plaintiff has not
demonstrated a likelihood of prevailing on any of them.
The first cause of action is for breach of contract. It contains two paragraphs, as follows:
"47. Encinal basketball coaches are allowed to continue coaching in the absence of good cause for
dismissal. Hecimovich is not aware of any basketball coach not being allowed to continue to coach,
despite various violations of Encinal rules and policies. Hecimovich's proposal to reduce a player's
playing time due to misconduct conformed with Encinal policy, as well as League policy. When Roth
insisted, equivocally, that the policy Hecimovich relied on either did not apply to Encinal, did not apply
to his team, or meant the opposite of what it says, Hecimovich deferred to her decision. The player
was never disciplined in any respect, and Hecimovich did not violate any Encinal or League policy.
"48. As a result of Defendants' actions as set forth above, Hecimovich has suffered general damages
according to proof."
Passing over whether a volunteer coach of a fourth grade basketball team in an after school league
can have an enforceable contract, plaintiff's claim fails, for several reasons. Plaintiff has produced no
evidence demonstrating the formation of any contract--no evidence of offer, acceptance, or
consideration, no evidence from which the terms of any contract could be determined. Beyond that,
he has pleaded no damages compensable in contract (see generally 1 Witkin, Summary of Cal. Law
(10th ed. 2005) Contracts, §§ 869 et seq., p. 956), and has provided no evidence of any damages to
him. (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)
The second cause of action is for violation of the covenant of good faith and fair dealing. To the extent
the claim sounds in contract, it is coextensive with plaintiff's first cause of action. To the extent plaintiff
is alleging a tort claim, it fails, as such a tort exists {Slip Opn. Page 26} only in insurance contracts.
(Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102-103; Sutherland v. Barclays
American/Mortgage Corp. (1997) 53 Cal.App.4th 299, 314.)
The fifth cause of action, for negligence, alleges in pertinent parts as follows:
"66. Hecimovich's complaints to Roth involved Encinal student safety in a District and
Encinal-sponsored activity conducted on Encinal school property. Defendants have a heightened
standard of care with regard to providing safe premises and maintaining policies sufficient to ensure
student safety. [¶] . . . [¶]
"68. Burke's decision to bar Hecimovich from coaching based on Roth's reports, and her failure to
discover the inaccuracy and inadequacy of those reports, was similarly negligent in that Burke had a
duty to address student safety issues in her capacity as PTO basketball coordinator.
"69. Perri's decision to bar Hecimovich from coaching based on Roth's and Burke's reports, and her
failure to discover the inaccuracy and inadequacy of those reports, was similarly negligent in that
Perri had a duty to address student safety issues in her capacity as PTO President.
"70. As a result of defendants' actions as set forth above, Hecimovich has suffered general and
special damages according to proof. . . ."
Any claim by plaintiff would fail because he did not plead a duty to him for so-called "safety issues."
(Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Likewise because plaintiff has shown no
damages. (Anschutz Entertainment Group, Inc. v. Snepp, supra, 171 Cal.App.4th at p. 643.)
The sixth cause of action is for fraud. It alleges as follows:
"72. Roth, Burke and Perri dissuaded Hecimovich from taking legal action regarding their decision to
ban him from coaching during the 2009-2010 season by representing that they would fairly review
that decision and would fairly consider him for future seasons. Perri represented that an impartial
investigation was required and that she would conduct such an investigation. After convincing
Hecimovich to refrain from challenging the PTO's actions, Perri never conducted such an
investigation. Hecimovich {Slip Opn. Page 27} is informed and believes that Perri never intended to
do so.
"73. As a result of defendants' actions as set forth above, Hecimovich has suffered general and
special damages according to proof. Hecimovich has also suffered and continues to suffer damages
to his reputation, according to proof. Hecimovich is also entitled to recover his reasonable attorneys'
fees in bringing this matter to trial."
Plaintiff's pleading fails because he has failed to allege with the requisite specificity " ' "facts which
show how, when, where, to whom, and by which means the representations were tendered." ' "
(Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Moreover, as we understand the so-called
misrepresentations, they were made to dissuade plaintiff "from taking legal action." He has, of
course, taken the action, and so there is no reliance on the claimed representation, a necessary
element of a fraud claim. (CACI No. 1900) And, again, there is no evidence of compensable damage.
(Anschutz Entertainment Group, Inc. v. Snepp, supra, 171 Cal.App.4th at p. 643.)
The seventh cause of action, for intentional infliction of emotional distress, requires several things
missing here. First, the complained of conduct must be outrageous, that is, beyond all bounds of
reasonable decency. (Cervantez v. J.C. Penny Co. (1979) 24 Cal.3d 579, 593; Rest.2d Torts, § 46,
com. d, pp. 72-73 ["no occasion for the law to intervene in every case where some one's feelings are
hurt"].) Second, the conduct must result in severe emotional distress. (Agarwal v. Johnson (1979) 25
Cal.3d 932, 946.) And third, the tort calls for intentional, or at least reckless, conduct. (5 Witkin,
Summary of Cal. Law, supra, Torts, § 453, p. 672.) None of these is evidenced here.
The eighth cause of action, labeled by plaintiff as "negligent infliction of emotional distress," does not
even exist. "The negligent causing of emotional distress is not an independent tort but the tort of
negligence, involving the usual duty and causation issues. Recovery is generally allowed where there
is physical impact. (See e.g., Di Mare v. Cresci (1962) 58 Cal.2d 292, 297, 300 [fall injuring hip and
leg, leaving plaintiff suspended in air and causing emotional trauma]; . . . Lawson v. Management
Activities (1999) 69 Cal.App.4th 652, 656 [policy of designating tort as negligent {Slip Opn. Page 28}
infliction of emotional distress often incorrectly results in its being treated as independent tort].)" (6
Witkin, supra, Summary of Cal. Law, Torts, § 1004, p. 270.)
DISPOSITION
The order denying the SLAPP motion is reversed, and the matter remanded with instructions to: (1)
enter an order granting the motion, and (2) hold a hearing, following further briefing, to award
defendants the attorney fees to which they are entitled under section 425.16.
Kline, P.J., and Haerle, J., concurred.
FN 1. As Witkin distills the pleading rule, "It is sometimes said to be a requirement, and it certainly is
the common practice, to plead the exact words or the picture or other defamatory matter. The chief
reason appears to be that the court must determine, as a question of law, whether the defamatory
matter is on its face or capable of the defamatory meaning attributed to it by the innuendo. Hence, the
complaint should set the matter out verbatim, either in the body or as an attached exhibit." (5 Witkin,
Cal. Procedure (5th ed. 2008), Pleading, § 739, p. 159.)
FN 2. Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
FN 3. The tentative ruling is not in the record.
FN 4. We also note that plaintiff's attempt to add this material does not comply with California Rules
of Court, rule 8.252(a) or Evidence Code section 459.
FN 5. Among other things, plaintiff describes defendants' brief as spending "four pages comparing
[plaintiff] to the child molester in Terry," and asserts that defendants' "attempt to analogize [plaintiff's]
conduct to the conduct in Terry is shameless and repulsive, and highlights the seemingly endless
capacity of ignorant people to say ignorant things." Then, after a brief statement of his description of
Terry, plaintiff ends with this: "Here, by contrast, the only persons who displayed wanton disregard for
child safety are Roth, who received [plaintiff's] report of unsafe playing conditions in February 2009
but elected to ignore the complaint so as not to disturb a wealthy parent, and Liner, who elected to
defer to Roth rather than exercise her prerogative as Encinal School Principal and member of the
PTO Board to reverse Roth's misguided priorities in the interest of child safety."
FN 6. Civil Code section 45 provides: "Libel is a false and unprivileged publication by writing, printing,
picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure
him in his occupation."
Civil Code section 46 provides: "Slander is a false and unprivileged publication, orally uttered . . .
which:
"1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
"2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
"3. Tends directly to injure him in respect to his office, profession, trade or business, either by
imputing to him general disqualification in those respects which the office or other occupation
peculiarly requires, or by imputing something with reference to his office, profession, trade, or
business that has a natural tendency to lessen its profits;
"4. Imputes to him impotence or a want of chastity; or
"5. Which, by natural consequence, causes actual damage."
FN 7. Interestingly, despite plaintiff's occasional attributions to his assistant coach Picciotto, plaintiff's
brief acknowledges that "both parties' characterizations of Picciotto's statements are subject to being
stricken as hearsay, an objection both parties made at hearing." As to this, plaintiff is correct.
FN 8. Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289-1290, does state to the contrary. We note
that Salma has not been followed by any other published decision, and that every other case holds to
the contrary. We disagree with Salma, as apparently does the leading practical treatise: "Comment:
The anti-SLAPP statute should be interpreted to allow the court to consider the 'pleadings' in
determining the nature of the 'cause of action'-i.e., whether the anti-SLAPP statute applies. But
affidavits stating evidentiary facts should be required to oppose the motion (because pleadings are
supposed to allege ultimate facts, not evidentiary facts)." (Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2011) ¶ 7.1021.1, p. 7(II)-48.)
This Plaintiff had the courage to present its case to a jury.
CALIFORNIA DEFAMATION LAWYERS
ASSOCIATION
Freedom Through Truth
Aaron P. Morris is the 2011 President of the California Defamation Lawyers
Association, and a partner of Morris & Stone LLP.
September 2009
Internet Defamation Cases Present Challenging Issues for Jurors
My firm’s latest Internet defamation trial in conservative Orange County
provided some valuable insight into what goes through the jurors’ minds as they
decide this type of case...
In this dispute, when an independent contractor’s annual contract was not
renewed, she took to the Internet, posting defamatory comments about our
client, the person she blamed for her termination. She apparently hoped to
create enough controversy about our client that he would be removed, leaving
her free to return to work under whomever took his position. All of her Internet
postings were anonymous, with her creating different identities for the various
postings, but we were able to determine her identity by means of a subpoena to
the website operator.
After the jury found in our client’s favor, both in the trial and punitive damage
phases, Defense counsel called for the jurors to be polled. This proved to be
entertaining. As we later discovered when we spoke to the jurors following the
punitive damages phase, most were in the middle of the damages range, but
some wanted to award much more and one wanted to award little or nothing.
They got nine jurors to the agree on the amount, but the other two ends of the
spectrum took the opportunity of the polling to give a very emphatic "NO!" when
asked if they had agreed to the dollar amount. One juror who had wanted to
award more seemed especially upset.
The comments of the jurors following the action were very enlightening, and
illustrate some of the issues that arise in any Internet defamation action. First
there is the issue as to whether anyone actually saw the postings. Just because
defamatory comments are posted on a given site does not mean that anyone
read them. Thankfully, we had located a witness unrelated to the action who
had seen the postings, so we were able to put a face on "Jane Internet Browser"
for the jury so they would know that people actually saw the postings.
But that only leads to the second issue. Assuming the postings were
seen, did they have any impact on the reputation of the Plaintiff? Our
Jane Browser had never heard of the Plaintiff, and testified that she
formed no opinion about Plaintiff good or bad after reading the
postings. Indeed, that lack of an impact was only strengthened by our
own parade of witnesses, all testifying that our client was a wonderful
guy with a great reputation. That testimony was necessary in order to show
the false and defamatory nature of the postings, but also served to support
Defendant’s claim that despite her best efforts to harm Plaintiff’s reputation, she
had not succeeded.
Then there is the issue of actual damages. Of course, general damages
are presumed in a defamation action, but we prefer to show actual
damages whenever possible to overcome the jury’s resistance to
awarding damages when no quantifiable damages have been shown. It’s
a little like asking a jury in a personal injury action to award damages for pain
and suffering even though the victim had no visible injuries. In our business
defamation cases we are almost always able to show actual damages by means
of the loss of income to the business. Here, however, we took actual
damages out of the special verdict because there was just no proof of
any and an award by the jury would have been grounds for appeal.
Limited to presumed damages only, the jury gave a fairly modest award, but
came back much bigger on the punitive damages. As suspected, the jurors said
that they fought hard over the presumed damages because they did not get a
sense that anyone thought less of the Plaintiff because of the postings.
However, they had far less difficulty awarding the punitive damages because it
was clear that the Defendant needed to be punished and deterred from
engaging in the conduct in the future. The judge agreed, and added an
injunction against defendant, prohibiting her from repeating the comments
about Plaintiff. Indeed, he advised defense counsel (Defendant did not stay for
the jury verdict) that Defendant would do well to cease all comments about
Plaintiff.
[In a different case]... court also awarded us over $18000 in attorney fees
against the Plaintiff.
CALIFORNIA DEFAMATION LAWYERS
ASSOCIATION
Freedom Through Truth
Aaron P. Morris is the 2011 President of the California Defamation Lawyers
Association, and a partner of Morris & Stone LLP.
September 2009
Internet Defamation Cases Present Challenging Issues for Jurors
My firm’s latest Internet defamation trial in conservative Orange County
provided some valuable insight into what goes through the jurors’ minds as they
decide this type of case...
In this dispute, when an independent contractor’s annual contract was not
renewed, she took to the Internet, posting defamatory comments about our
client, the person she blamed for her termination. She apparently hoped to
create enough controversy about our client that he would be removed, leaving
her free to return to work under whomever took his position. All of her Internet
postings were anonymous, with her creating different identities for the various
postings, but we were able to determine her identity by means of a subpoena to
the website operator.
After the jury found in our client’s favor, both in the trial and punitive damage
phases, Defense counsel called for the jurors to be polled. This proved to be
entertaining. As we later discovered when we spoke to the jurors following the
punitive damages phase, most were in the middle of the damages range, but
some wanted to award much more and one wanted to award little or nothing.
They got nine jurors to the agree on the amount, but the other two ends of the
spectrum took the opportunity of the polling to give a very emphatic "NO!" when
asked if they had agreed to the dollar amount. One juror who had wanted to
award more seemed especially upset.
The comments of the jurors following the action were very enlightening, and
illustrate some of the issues that arise in any Internet defamation action. First
there is the issue as to whether anyone actually saw the postings. Just because
defamatory comments are posted on a given site does not mean that anyone
read them. Thankfully, we had located a witness unrelated to the action who
had seen the postings, so we were able to put a face on "Jane Internet Browser"
for the jury so they would know that people actually saw the postings.
But that only leads to the second issue. Assuming the postings were
seen, did they have any impact on the reputation of the Plaintiff? Our
Jane Browser had never heard of the Plaintiff, and testified that she
formed no opinion about Plaintiff good or bad after reading the
postings. Indeed, that lack of an impact was only strengthened by our
own parade of witnesses, all testifying that our client was a wonderful
guy with a great reputation. That testimony was necessary in order to show
the false and defamatory nature of the postings, but also served to support
Defendant’s claim that despite her best efforts to harm Plaintiff’s reputation, she
had not succeeded.
Then there is the issue of actual damages. Of course, general damages
are presumed in a defamation action, but we prefer to show actual
damages whenever possible to overcome the jury’s resistance to
awarding damages when no quantifiable damages have been shown. It’s
a little like asking a jury in a personal injury action to award damages for pain
and suffering even though the victim had no visible injuries. In our business
defamation cases we are almost always able to show actual damages by means
of the loss of income to the business. Here, however, we took actual
damages out of the special verdict because there was just no proof of
any and an award by the jury would have been grounds for appeal.
Limited to presumed damages only, the jury gave a fairly modest award, but
came back much bigger on the punitive damages. As suspected, the jurors said
that they fought hard over the presumed damages because they did not get a
sense that anyone thought less of the Plaintiff because of the postings.
However, they had far less difficulty awarding the punitive damages because it
was clear that the Defendant needed to be punished and deterred from
engaging in the conduct in the future. The judge agreed, and added an
injunction against defendant, prohibiting her from repeating the comments
about Plaintiff. Indeed, he advised defense counsel (Defendant did not stay for
the jury verdict) that Defendant would do well to cease all comments about
Plaintiff.
[In a different case]... court also awarded us over $18000 in attorney fees
against the Plaintiff.
Stevie Wonder wins attorneys fees from
defamation lawsuit
By KPCC Wire Services
May 27, 2010
Stevie Wonder and two employees of a Los Angeles radio station he owns are
entitled to $325,525 in attorneys' fees it cost them to get a defamation lawsuit
by a former colleague dismissed, a judge ruled today.
In his suit filed in February 2008, ex-KJLH disc jockey Clifton Winston claimed
he was the one being talked about in an April 18, 2007, broadcast of a
voicemail from a woman who alleged she had gotten pregnant during an
extramarital affair and the man would not admit it.
Winston demanded punitive damages from the defendants, including Wonder's
company, Taxi Productions Inc., which operates the radio station.
Winston also sued KJLH program director Aundrae Russell and afternoon radio
personalities Lawrence Williams and Janine Haydel, claiming they allowed the
defamatory message to be broadcast twice within an hour "despite having
knowledge of the falsity of the statements and knowledge of the damage that
the statement would cause."
In 2008, Los Angeles Superior Court Judge Michael L. Stern dismissed
Wonder, Haydel and Russell as defendants on grounds the suit interfered with
their right to free speech. He also tossed a claim against Wonder for intentional
infliction of emotional distress.
Stern also found the entertainer was unaware the voicemail would be
broadcast and that the topics of the radio broadcast – marital infidelity and
children born out of wedlock – are matters of public concern.
Stern denied similar dismissal motions made on behalf of Williams and Taxi
Productions. But in November, a panel of the 2nd District Court of Appeal
reversed that ruling and also threw out the case against them.
The state Supreme Court denied Hill's petition for review.
In today's ruling, Stern said the lawyers for Wonder, Williams and Haydel
spelled out their requests with precision.
"I have to say, they've documented what they've done," Stern said. "It's
probably among the best prepared I've ever had."
Attorney Michelle E. Hill, who represented Winston, said the amount sought
was excessive and asked for a reduction. But Stephen G. Contopulos, the
lawyer for Wonder and the others, said the documents simply reflected what he
and his colleagues billed their three clients.
defamation lawsuit
By KPCC Wire Services
May 27, 2010
Stevie Wonder and two employees of a Los Angeles radio station he owns are
entitled to $325,525 in attorneys' fees it cost them to get a defamation lawsuit
by a former colleague dismissed, a judge ruled today.
In his suit filed in February 2008, ex-KJLH disc jockey Clifton Winston claimed
he was the one being talked about in an April 18, 2007, broadcast of a
voicemail from a woman who alleged she had gotten pregnant during an
extramarital affair and the man would not admit it.
Winston demanded punitive damages from the defendants, including Wonder's
company, Taxi Productions Inc., which operates the radio station.
Winston also sued KJLH program director Aundrae Russell and afternoon radio
personalities Lawrence Williams and Janine Haydel, claiming they allowed the
defamatory message to be broadcast twice within an hour "despite having
knowledge of the falsity of the statements and knowledge of the damage that
the statement would cause."
In 2008, Los Angeles Superior Court Judge Michael L. Stern dismissed
Wonder, Haydel and Russell as defendants on grounds the suit interfered with
their right to free speech. He also tossed a claim against Wonder for intentional
infliction of emotional distress.
Stern also found the entertainer was unaware the voicemail would be
broadcast and that the topics of the radio broadcast – marital infidelity and
children born out of wedlock – are matters of public concern.
Stern denied similar dismissal motions made on behalf of Williams and Taxi
Productions. But in November, a panel of the 2nd District Court of Appeal
reversed that ruling and also threw out the case against them.
The state Supreme Court denied Hill's petition for review.
In today's ruling, Stern said the lawyers for Wonder, Williams and Haydel
spelled out their requests with precision.
"I have to say, they've documented what they've done," Stern said. "It's
probably among the best prepared I've ever had."
Attorney Michelle E. Hill, who represented Winston, said the amount sought
was excessive and asked for a reduction. But Stephen G. Contopulos, the
lawyer for Wonder and the others, said the documents simply reflected what he
and his colleagues billed their three clients.
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
Code—no attorney fees for defamation
DOCKET NO. S103417
Martin v. Szeto
Filed 2/19/04
IN THE SUPREME COURT OF CALIFORNIA
S103417
Ct.App. 1/4 A094405v.San Francisco County\
Super. Ct. No. 999134
We granted review to resolve a conflict in the lower courts over the proper
interpretation of Code of Civil Procedure section 1021.7.1 The section permits a
court to award attorneys’ fees to a peace officer, or to a public entity employing
a
peace officer, that successfully defends an action for damages arising out of the
performance of the officer’s duties if the action was not filed or maintained in
good faith and with reasonable cause. The section also authorizes an award of
fees “in an action for libel or slander.” (Ibid.) In Planned Protective Services v.
Gorton (1988) 200 Cal.App.3d 1, the Court of Appeal held that section 1021.7
authorizes an award of fees in an action for libel or slander only if a peace officer
or an officer’s public employer is a party. (Id., at p. 15.) In the case before us,
the
Court of Appeal rejected Gorton and awarded fees to the successful defendants
in
a case not involving a peace officer. We reverse.
california no attorney fees defamation
1. Martin v. Szeto - S103417 - Thu, 02/19/2004 | California Supreme ...
scocal.stanford.edu › Opinions
Feb 19, 2004 – grounds and also because plaintiff filed no opposition. ...
awardattorneys' fees in actions for libel and slander generally, or only in actions
...
2. California Defamation Lawyers Association | President's Page ...
www.californiadefamationlawyersassociation.com/Presidents_Page.ht...
No doubt, he thought that by suing our client for defamation, he could make all
.....Further, knowing that the attorney fees may have to be paid to the other
side, ...
3. California Defamation Law Blog : Los Angeles Defamation & Anti ...
www.defamationlawblog.com/
Jun 21, 2012 – The above is by no means an exhaustive analysis of the
Complaint, but I do .... Tags: Anti-SLAPP, california anti slapp attorneys fees,
motion to ...
4. Attorneys' Fees : California Defamation Law Blog
www.defamationlawblog.com/articles/attorneys-fees/
Mar 11, 2011 – California Defamation Law Blog : Los Angeles Defamation ...
Noprevious case supports an award of attorneys' fees against a losing plaintiff's
...
5. Our Team - Elaine Charlson Bredehoft
www.cbc-law.com/our_team/elaine_c_bredehoft.htm
2004) (Represented former President and CEO in defamation and breach of
contract - $6.2 ... United International Investigative Services, C.A. No. ...
$750000 verdict, $186000 court award of attorney's fees, liability upheld, on
remand from U.S. ...
6. Defamation - Ivan Hoffman, Attorney at Law
www.ivanhoffman.com/defamation.html
California Civil Code section 45 provides in part as follows: ... A libel which
isdefamatory of the plaintiff without the necessity of explanatory matter, such as
an ...
7. Internet Defamation and Libel Attorney | San Francisco Bay Area ...
jonesdevoy.com/practice-areas/.../internet-defamation-and-libel/
Attorney with experience handeling defamation lawsuits for content placed on
the internet. ... San Francisco, CA 94105 ... Everyone has the right to voice
their freedom of speech, but no one can ... If successful, it may resolve the case
quickly, and may possibly reimburse the winning party for their attorney fees
and costs.
8. Damages in a defamation case are limited to actual damages, which ...
www.theemploymentlawyers.com/.../Workplace%20defamation%20...
At common law, victims of defamation could be awarded “presumed” damages,
even in the absence of proof of .... Generally, no attorneys fees are awarded to
those prevailing under Massachusetts tort law. .... Town of South Hadley, C.A.
No.
9. A Rabbi sues the University of California for defamation over ugly
blog.librarylaw.com/librarylaw/2005/02/noticenbsp_not_.html
Feb 25, 2005 – Who should pay the university's attorneys' fees? ... that the
lawsuit was filed well past the one year statute of limitations for a California libel
claim (Cal. Civ. ...Ct. No. 414796. DISPOSITION: The order appealed from is
affirmed.
10. Workipedia
DOCKET NO. S103417
Martin v. Szeto
Filed 2/19/04
IN THE SUPREME COURT OF CALIFORNIA
S103417
Ct.App. 1/4 A094405v.San Francisco County\
Super. Ct. No. 999134
We granted review to resolve a conflict in the lower courts over the proper
interpretation of Code of Civil Procedure section 1021.7.1 The section permits a
court to award attorneys’ fees to a peace officer, or to a public entity employing
a
peace officer, that successfully defends an action for damages arising out of the
performance of the officer’s duties if the action was not filed or maintained in
good faith and with reasonable cause. The section also authorizes an award of
fees “in an action for libel or slander.” (Ibid.) In Planned Protective Services v.
Gorton (1988) 200 Cal.App.3d 1, the Court of Appeal held that section 1021.7
authorizes an award of fees in an action for libel or slander only if a peace officer
or an officer’s public employer is a party. (Id., at p. 15.) In the case before us,
the
Court of Appeal rejected Gorton and awarded fees to the successful defendants
in
a case not involving a peace officer. We reverse.
california no attorney fees defamation
1. Martin v. Szeto - S103417 - Thu, 02/19/2004 | California Supreme ...
scocal.stanford.edu › Opinions
Feb 19, 2004 – grounds and also because plaintiff filed no opposition. ...
awardattorneys' fees in actions for libel and slander generally, or only in actions
...
2. California Defamation Lawyers Association | President's Page ...
www.californiadefamationlawyersassociation.com/Presidents_Page.ht...
No doubt, he thought that by suing our client for defamation, he could make all
.....Further, knowing that the attorney fees may have to be paid to the other
side, ...
3. California Defamation Law Blog : Los Angeles Defamation & Anti ...
www.defamationlawblog.com/
Jun 21, 2012 – The above is by no means an exhaustive analysis of the
Complaint, but I do .... Tags: Anti-SLAPP, california anti slapp attorneys fees,
motion to ...
4. Attorneys' Fees : California Defamation Law Blog
www.defamationlawblog.com/articles/attorneys-fees/
Mar 11, 2011 – California Defamation Law Blog : Los Angeles Defamation ...
Noprevious case supports an award of attorneys' fees against a losing plaintiff's
...
5. Our Team - Elaine Charlson Bredehoft
www.cbc-law.com/our_team/elaine_c_bredehoft.htm
2004) (Represented former President and CEO in defamation and breach of
contract - $6.2 ... United International Investigative Services, C.A. No. ...
$750000 verdict, $186000 court award of attorney's fees, liability upheld, on
remand from U.S. ...
6. Defamation - Ivan Hoffman, Attorney at Law
www.ivanhoffman.com/defamation.html
California Civil Code section 45 provides in part as follows: ... A libel which
isdefamatory of the plaintiff without the necessity of explanatory matter, such as
an ...
7. Internet Defamation and Libel Attorney | San Francisco Bay Area ...
jonesdevoy.com/practice-areas/.../internet-defamation-and-libel/
Attorney with experience handeling defamation lawsuits for content placed on
the internet. ... San Francisco, CA 94105 ... Everyone has the right to voice
their freedom of speech, but no one can ... If successful, it may resolve the case
quickly, and may possibly reimburse the winning party for their attorney fees
and costs.
8. Damages in a defamation case are limited to actual damages, which ...
www.theemploymentlawyers.com/.../Workplace%20defamation%20...
At common law, victims of defamation could be awarded “presumed” damages,
even in the absence of proof of .... Generally, no attorneys fees are awarded to
those prevailing under Massachusetts tort law. .... Town of South Hadley, C.A.
No.
9. A Rabbi sues the University of California for defamation over ugly
blog.librarylaw.com/librarylaw/2005/02/noticenbsp_not_.html
Feb 25, 2005 – Who should pay the university's attorneys' fees? ... that the
lawsuit was filed well past the one year statute of limitations for a California libel
claim (Cal. Civ. ...Ct. No. 414796. DISPOSITION: The order appealed from is
affirmed.
10. Workipedia
DEFAMATION PLAINTIFF DISMISSES CASE AND PAYS
ATTORNEYS FEES OF REID & HELLYER CLIENT
September 14, 2010
Representing the Idyllwild Town Crier against a defamation lawsuit filed by a
local attorney in federal court, Jim Manning filed an anti-SLAPP motion that
ultimately lead to the plaintiff dismissing his lawsuit.
As noted in a news story by the Press-Enterprise, the lawsuit centered
around two May 6 newspaper articles the Town Crier published about the
Idyllwild Chamber of Commerce's election process.
Along with agreeing to dismiss the case, the plaintiff also agreed to pay a
portion of the newspaper's attorney's fees, the Business Press also noted.
The plaintiff also agreed not to initiate any further legal action regarding the
articles that served as the basis of his lawsuit, including re-filing the case in
California state court.
Winning an anti-SLAPP motion requires the defendant in the case, such as
the Idyllwild Town Crier, to show that the lawsuit is based on activity that is
protected by the Constitution. Once that threshold is met, the burden shifts to
the plaintiff to show a reasonable probability of prevailing. Defendants
prevailing on an anti-SLAPP motion are entitled a mandatory award of
reasonable attorney's fees. These motions are regularly filed in the field of
media law, a significant part of Manning's practice.
Headquartered in Riverside, Reid & Hellyer has been serving the Inland
Empire for more than 100 years as one of the most-respected full service law
firms in Southern California, providing transactional and litigation services in
business, real estate, media law, bankruptcy, and civil rights. The firm's
lawyers regularly counsel mediation or arbitration in lieu of litigation in
appropriate matters. They also serve as mediators and arbitrators
themselves.
ATTORNEYS FEES OF REID & HELLYER CLIENT
September 14, 2010
Representing the Idyllwild Town Crier against a defamation lawsuit filed by a
local attorney in federal court, Jim Manning filed an anti-SLAPP motion that
ultimately lead to the plaintiff dismissing his lawsuit.
As noted in a news story by the Press-Enterprise, the lawsuit centered
around two May 6 newspaper articles the Town Crier published about the
Idyllwild Chamber of Commerce's election process.
Along with agreeing to dismiss the case, the plaintiff also agreed to pay a
portion of the newspaper's attorney's fees, the Business Press also noted.
The plaintiff also agreed not to initiate any further legal action regarding the
articles that served as the basis of his lawsuit, including re-filing the case in
California state court.
Winning an anti-SLAPP motion requires the defendant in the case, such as
the Idyllwild Town Crier, to show that the lawsuit is based on activity that is
protected by the Constitution. Once that threshold is met, the burden shifts to
the plaintiff to show a reasonable probability of prevailing. Defendants
prevailing on an anti-SLAPP motion are entitled a mandatory award of
reasonable attorney's fees. These motions are regularly filed in the field of
media law, a significant part of Manning's practice.
Headquartered in Riverside, Reid & Hellyer has been serving the Inland
Empire for more than 100 years as one of the most-respected full service law
firms in Southern California, providing transactional and litigation services in
business, real estate, media law, bankruptcy, and civil rights. The firm's
lawyers regularly counsel mediation or arbitration in lieu of litigation in
appropriate matters. They also serve as mediators and arbitrators
themselves.
DOCKET NO. S103417
Martin v. Szeto
Filed 2/19/04
S103417
IN THE SUPREME COURT OF CALIFORNIA Ct.App. 1/4 A094405
Super. Ct. No. 999134
CRAIG K. MARTIN,
Plaintiff and Respondent,
v.
San Francisco County
RICHARD SZETO et al.,
Defendants and Appellants.
We granted review to resolve a conflict in the lower courts over the proper
interpretation of Code of Civil Procedure section 1021.7.1 The section
permits a
court to award attorneys’ fees to a peace officer, or to a public entity
employing a
peace officer, that successfully defends an action for damages arising out of
the
performance of the officer’s duties if the action was not filed or maintained in
good faith and with reasonable cause. The section also authorizes an award
of
fees “in an action for libel or slander.” (Ibid.) In Planned Protective Services v.
Gorton (1988) 200 Cal.App.3d 1, the Court of Appeal held that section 1021.7
authorizes an award of fees in an action for libel or slander only if a peace
officer
or an officer’s public employer is a party. (Id., at p. 15.)
In the case before us, the Court of Appeal rejected Gorton and
awarded fees to the successful defendants in a case not involving a
peace officer.
We reverse.
Martin v. Szeto
Filed 2/19/04
S103417
IN THE SUPREME COURT OF CALIFORNIA Ct.App. 1/4 A094405
Super. Ct. No. 999134
CRAIG K. MARTIN,
Plaintiff and Respondent,
v.
San Francisco County
RICHARD SZETO et al.,
Defendants and Appellants.
We granted review to resolve a conflict in the lower courts over the proper
interpretation of Code of Civil Procedure section 1021.7.1 The section
permits a
court to award attorneys’ fees to a peace officer, or to a public entity
employing a
peace officer, that successfully defends an action for damages arising out of
the
performance of the officer’s duties if the action was not filed or maintained in
good faith and with reasonable cause. The section also authorizes an award
of
fees “in an action for libel or slander.” (Ibid.) In Planned Protective Services v.
Gorton (1988) 200 Cal.App.3d 1, the Court of Appeal held that section 1021.7
authorizes an award of fees in an action for libel or slander only if a peace
officer
or an officer’s public employer is a party. (Id., at p. 15.)
In the case before us, the Court of Appeal rejected Gorton and
awarded fees to the successful defendants in a case not involving a
peace officer.
We reverse.
Minnesota defamation case, David McKee MD v Dennis Laurion (see blog posts), cited as
precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States
District Court for the Eastern District of North Carolina.
In deciding an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington,
MYGALLONS LLC and ZENACON LLC STEVEN VERONA v. U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K.
E. AUSTIN CORP (12-1287); The United States Court of Appeals for the Fourth Circuit cited David McKee MD v.
Dennis Laurion.
From pages 13-14 of http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf:
The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in
Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: “(1) the defamatory
statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to
harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community; and (4) the recipient of the
false statement reasonably understands it to refer to a specific individual.” McKee v. Laurion, 825 N.W.2d 725, 729-30
(Minn. 2013)...A defamation claim cannot be based on a true statement. Id. at 730.
“True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or
detail.” Id. In articulating this standard, the Minnesota courts explain that “substantial truth” means that “the substance,
the gist, the sting, of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the
reader or listener as that which the pleaded truth would have produced.” Id.
Reference
precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States
District Court for the Eastern District of North Carolina.
In deciding an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington,
MYGALLONS LLC and ZENACON LLC STEVEN VERONA v. U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K.
E. AUSTIN CORP (12-1287); The United States Court of Appeals for the Fourth Circuit cited David McKee MD v.
Dennis Laurion.
From pages 13-14 of http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf:
The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in
Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: “(1) the defamatory
statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to
harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community; and (4) the recipient of the
false statement reasonably understands it to refer to a specific individual.” McKee v. Laurion, 825 N.W.2d 725, 729-30
(Minn. 2013)...A defamation claim cannot be based on a true statement. Id. at 730.
“True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or
detail.” Id. In articulating this standard, the Minnesota courts explain that “substantial truth” means that “the substance,
the gist, the sting, of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the
reader or listener as that which the pleaded truth would have produced.” Id.
Reference
Palmer v. KlearGear.com
Public Citizen
May 2014
Topic(s): Consumer Justice-Internet Free Speech
Documents:
Default Judgment (05/15/2014)
Complaint (12/18/2013)
Five years ago, John Palmer ordered Christmas gifts online from a web
merchant called KlearGear.com. The gifts never arrived, and John’s attempts to
contact KlearGear.com were unsuccessful. His wife then posted a negative
review on RipoffReport.com. In 2012, the Palmers received a demand
from KlearGear.com for $3500. According to KlearGear.com, through his
wife’s post, John violated a “non-disparagement clause” in the site’s
Terms of Use that prohibits users from taking any action that negatively
impacts KlearGear.com or its reputation, on pain of a $3500 fine.
When the Palmers refused to pay – in part because the Term was not on the
website at the time of his purchases.com – KlearGear.com reported the
supposed “debt” to the credit reporting agencies. When the Palmers disputed
the debt with the credit reporting agencies, KlearGear.com confirmed the
supposed “debt” to the credit reporting agencies. More than a year later – after
the Palmers have been turned down for credit, and had their car loan delayed
and paid a higher interest rate on it – this “debt” still mars John Palmer’s credit.
On December 18, 2013, Public Citizen filed suit against KlearGear.com and its
debt collector in federal court on behalf of the Palmers. The suit seeks a
declaration that John does not owe any “debt” for violating the “non-
disparagement clause,” and it seeks compensatory and punitive damages from
KlearGear.com for violations of the Fair Credit Reporting Act, defamation,
interference with prospective economic relations, and infliction of emotional
distress.
Because KlearGear.com never appeared to defend, on May 15, 2014, the
district court granted the Palmers a default judgment declaring that “John
Palmer does not now, and never did, owe KlearGear.com or any other party
any money based on KlearGear.com's ‘non-disparagement clause’”; holding
KlearGear.com liable for violating the Fair Credit Reporting Act and common
law; and setting a hearing to determine damages.
Public Citizen
May 2014
Topic(s): Consumer Justice-Internet Free Speech
Documents:
Default Judgment (05/15/2014)
Complaint (12/18/2013)
Five years ago, John Palmer ordered Christmas gifts online from a web
merchant called KlearGear.com. The gifts never arrived, and John’s attempts to
contact KlearGear.com were unsuccessful. His wife then posted a negative
review on RipoffReport.com. In 2012, the Palmers received a demand
from KlearGear.com for $3500. According to KlearGear.com, through his
wife’s post, John violated a “non-disparagement clause” in the site’s
Terms of Use that prohibits users from taking any action that negatively
impacts KlearGear.com or its reputation, on pain of a $3500 fine.
When the Palmers refused to pay – in part because the Term was not on the
website at the time of his purchases.com – KlearGear.com reported the
supposed “debt” to the credit reporting agencies. When the Palmers disputed
the debt with the credit reporting agencies, KlearGear.com confirmed the
supposed “debt” to the credit reporting agencies. More than a year later – after
the Palmers have been turned down for credit, and had their car loan delayed
and paid a higher interest rate on it – this “debt” still mars John Palmer’s credit.
On December 18, 2013, Public Citizen filed suit against KlearGear.com and its
debt collector in federal court on behalf of the Palmers. The suit seeks a
declaration that John does not owe any “debt” for violating the “non-
disparagement clause,” and it seeks compensatory and punitive damages from
KlearGear.com for violations of the Fair Credit Reporting Act, defamation,
interference with prospective economic relations, and infliction of emotional
distress.
Because KlearGear.com never appeared to defend, on May 15, 2014, the
district court granted the Palmers a default judgment declaring that “John
Palmer does not now, and never did, owe KlearGear.com or any other party
any money based on KlearGear.com's ‘non-disparagement clause’”; holding
KlearGear.com liable for violating the Fair Credit Reporting Act and common
law; and setting a hearing to determine damages.
Sanctions Caselaw
Contempt and sanctions
Article on the Consevatorship of
Becca
Conservatorship of Becca Appellate
opinion
Contempt and sanctions
Article on the Consevatorship of
Becca
Conservatorship of Becca Appellate
opinion
Lytwyn Appellant's Opening Brief
re res judicata
re res judicata
Judge Lisa Schall: Juror
declaration in Kelman v.
Kramer defamation case
declaration in Kelman v.
Kramer defamation case
John Peter Zenger
Wikipedia
John Peter Zenger
(October 26, 1697 – July
28, 1746) was a German
American printer,
publisher, editor, and
journalist in New York City.
Zenger printed The New
York Weekly Journal.[1]
He was a defendant in a
landmark legal case in
American jurisprudence,
known as The Zenger
Trial. His lawyers, Andrew
Hamilton and William
Smith, Sr., successfully
argued that truth is a
defense against charges
of libel.[2]
In late 1733, Zenger
began printing The New
York Weekly Journal, in
which he voiced opinions
critical of the colonial
governor, William Cosby.
[3] On November 17,
1734, On Cosby's orders,
the sheriff arrested
Zenger. After a grand jury
refused to indict him, the
attorney general Richard
Bradley charged him with
libel in August of 1735.[4]
Zenger case
In 1733, John Peter
Zenger copied a
newspaper in New York to
voice his disagreement
with the trivial policies of
newly appointed colonial
governor William Cosby.
On his arrival in New York
City, Cosby plunged into a
rancorous quarrel with the
Council of the colony over
his salary. Unable to
control the colony's
supreme court he
removed Chief Justice
Lewis Morris, replacing
him with James DeLancey
of the royal party.
Supported by members of
the popular party,
Zenger's New York Weekly
Journal continued to
publish articles critical of
the royal governor. Finally,
Cosby issued a
proclamation condemning
the newspaper's "divers
scandalous, virulent, false
and seditious reflections."
Zenger was charged with
libel. James Alexander was
Zenger's first counsel, but
the court found him in
contempt and removed
him from the case. After
more than eight months in
prison, Zenger went to
trial, defended by the
Philadelphia lawyer
Andrew Hamilton and the
New York lawyer William
Smith, Sr. The case was
now a cause célèbre, with
public interest at fever-
pitch. Rebuffed repeatedly
by Chief DeLancey during
the trial, Hamilton decided
to plead his client's case
directly to the jury. After
the lawyers for both sides
finished arguments, the
jury retired—only to return
in ten minutes with a
verdict of not guilty.
To better understand the
significance of this historic
case, it is important to
examine an actual issue of
the New York Weekly
Journal prior to Zenger's
arrest. Here we see a
typical attack against the
government in Zenger's
original newspaper. Page
one of this issue dated
February 25, 1733,[5]
carries an article under
the pseudonym "Cato."
This article gave its
readers a preview of the
same argument Attorney
Hamilton and William Smith
presented 18 months later
in the government's libel
case against Zenger—that
truth is an absolute
defense against libel.
In defending Zenger in this
landmark case, Hamilton
and Smith attempted to
establish the precedent
that a statement, even if
defamatory, is not libelous
if it can be proved, thus
affirming freedom of the
press in America.[6]
However, if they
succeeded in convincing
the jury, they failed in
establishing the legal
precedent. As late as
1804, the journalist Harry
Croswell was prosecuted
in a series of trials that led
to the famous People v.
Croswell. The courts
repeatedly rejected the
argument that truth was a
defense against libel. It
was only the next year that
the assembly, reacting to
this verdict, passed a law
that allowed truth as a
defense against a charge
of libel.
"Cato writes:
"But this doctrine ('a lible
(sic) is not less a libel for
being true') only holds true
as to private and personal
failings;
The exposing therefore of
public wickedness, as it is
a duty which every man
owes to the truth and his
country, can never be a
libel in the nature of
things?
It has been hitherto
generally understood, that
there was no other Libels
but those against
Magistrates and those
against private men. Now
to me there seems to be a
third set of libels, full as
destructive as any of the
former can probably be, I
mean libels against the
people.
Almost all over the earth,
the people for one injury
they do their governor,
receive ten thousand from
them. Nay, in some
countries it is made death
and damnation, not to
bear all the oppression
and cruelties, which men
made wanton by power
inflict upon those that
gave it them."
Wikipedia
John Peter Zenger
(October 26, 1697 – July
28, 1746) was a German
American printer,
publisher, editor, and
journalist in New York City.
Zenger printed The New
York Weekly Journal.[1]
He was a defendant in a
landmark legal case in
American jurisprudence,
known as The Zenger
Trial. His lawyers, Andrew
Hamilton and William
Smith, Sr., successfully
argued that truth is a
defense against charges
of libel.[2]
In late 1733, Zenger
began printing The New
York Weekly Journal, in
which he voiced opinions
critical of the colonial
governor, William Cosby.
[3] On November 17,
1734, On Cosby's orders,
the sheriff arrested
Zenger. After a grand jury
refused to indict him, the
attorney general Richard
Bradley charged him with
libel in August of 1735.[4]
Zenger case
In 1733, John Peter
Zenger copied a
newspaper in New York to
voice his disagreement
with the trivial policies of
newly appointed colonial
governor William Cosby.
On his arrival in New York
City, Cosby plunged into a
rancorous quarrel with the
Council of the colony over
his salary. Unable to
control the colony's
supreme court he
removed Chief Justice
Lewis Morris, replacing
him with James DeLancey
of the royal party.
Supported by members of
the popular party,
Zenger's New York Weekly
Journal continued to
publish articles critical of
the royal governor. Finally,
Cosby issued a
proclamation condemning
the newspaper's "divers
scandalous, virulent, false
and seditious reflections."
Zenger was charged with
libel. James Alexander was
Zenger's first counsel, but
the court found him in
contempt and removed
him from the case. After
more than eight months in
prison, Zenger went to
trial, defended by the
Philadelphia lawyer
Andrew Hamilton and the
New York lawyer William
Smith, Sr. The case was
now a cause célèbre, with
public interest at fever-
pitch. Rebuffed repeatedly
by Chief DeLancey during
the trial, Hamilton decided
to plead his client's case
directly to the jury. After
the lawyers for both sides
finished arguments, the
jury retired—only to return
in ten minutes with a
verdict of not guilty.
To better understand the
significance of this historic
case, it is important to
examine an actual issue of
the New York Weekly
Journal prior to Zenger's
arrest. Here we see a
typical attack against the
government in Zenger's
original newspaper. Page
one of this issue dated
February 25, 1733,[5]
carries an article under
the pseudonym "Cato."
This article gave its
readers a preview of the
same argument Attorney
Hamilton and William Smith
presented 18 months later
in the government's libel
case against Zenger—that
truth is an absolute
defense against libel.
In defending Zenger in this
landmark case, Hamilton
and Smith attempted to
establish the precedent
that a statement, even if
defamatory, is not libelous
if it can be proved, thus
affirming freedom of the
press in America.[6]
However, if they
succeeded in convincing
the jury, they failed in
establishing the legal
precedent. As late as
1804, the journalist Harry
Croswell was prosecuted
in a series of trials that led
to the famous People v.
Croswell. The courts
repeatedly rejected the
argument that truth was a
defense against libel. It
was only the next year that
the assembly, reacting to
this verdict, passed a law
that allowed truth as a
defense against a charge
of libel.
"Cato writes:
"But this doctrine ('a lible
(sic) is not less a libel for
being true') only holds true
as to private and personal
failings;
The exposing therefore of
public wickedness, as it is
a duty which every man
owes to the truth and his
country, can never be a
libel in the nature of
things?
It has been hitherto
generally understood, that
there was no other Libels
but those against
Magistrates and those
against private men. Now
to me there seems to be a
third set of libels, full as
destructive as any of the
former can probably be, I
mean libels against the
people.
Almost all over the earth,
the people for one injury
they do their governor,
receive ten thousand from
them. Nay, in some
countries it is made death
and damnation, not to
bear all the oppression
and cruelties, which men
made wanton by power
inflict upon those that
gave it them."
A Worldview,
Direct From Rural
Indiana
August 07, 2002
BEVERLY BEYETTE
LAT
...In Los Angeles
recently, Kimmel talked
about life in Mooreland
and life in Durham, where
she lives in a 1930s
house with daughter
Katie Romerill, 17, and
son Obadiah Kimmel,
almost 6, by second
husband Ben Kimmel,
from whom she is
separated. She talked of
literature and, oh yes,
litigation.
It seems not all of the
denizens of Mooreland
were thrilled with her
depiction of them in
"Zippy." While her elderly
neighbor, Edythe, who
wore the same dress 23
days in a row and
"clacked her false teeth
together like a castanet,"
had gone to her reward,
Kimmel's third-grade
teacher had not--and her
granddaughters were
hopping mad over
Kimmel's description of
her as both an
incompetent and "the
meanest woman in the
history of the Mooreland
Elementary School."
Kimmel decided to take
the offensive, collecting
depositions from 50 other
former third-graders, all
corroborating her
description. She faxed
them to Doubleday, which
forwarded the best to the
litigious granddaughters,
who promptly dropped
their defamation suit.
Direct From Rural
Indiana
August 07, 2002
BEVERLY BEYETTE
LAT
...In Los Angeles
recently, Kimmel talked
about life in Mooreland
and life in Durham, where
she lives in a 1930s
house with daughter
Katie Romerill, 17, and
son Obadiah Kimmel,
almost 6, by second
husband Ben Kimmel,
from whom she is
separated. She talked of
literature and, oh yes,
litigation.
It seems not all of the
denizens of Mooreland
were thrilled with her
depiction of them in
"Zippy." While her elderly
neighbor, Edythe, who
wore the same dress 23
days in a row and
"clacked her false teeth
together like a castanet,"
had gone to her reward,
Kimmel's third-grade
teacher had not--and her
granddaughters were
hopping mad over
Kimmel's description of
her as both an
incompetent and "the
meanest woman in the
history of the Mooreland
Elementary School."
Kimmel decided to take
the offensive, collecting
depositions from 50 other
former third-graders, all
corroborating her
description. She faxed
them to Doubleday, which
forwarded the best to the
litigious granddaughters,
who promptly dropped
their defamation suit.
When a big
newspaper and a
small-time blogger
say the same
thing, why do
these people sue
the blogger who
gets very few hits,
but not the big
news source?
Years After Criticism
of Its Practices,
Science Consultant
Pushes Back
By BARRY MEIER
NYT
OCT. 11, 2015
Karen Savage, a former
middle-school math
teacher. Ms. Savage said
that she and Cherri Foytlin
rejected an earlier offer
from ChemRisk to drop the
case if they retracted their
article about the company
and its Deepwater Horizon
report.
Dr. Dennis Paustenbach,
the head of the scientific
consulting firm ChemRisk,
has long been a leading
expert for companies
under legal fire for
environmental practices or
product safety. He and his
firm have also drawn the
scrutiny of investigative
journalists.
In 2005, The Wall Street
Journal reported on a
controversial role
ChemRisk played during
the case that became the
basis for the movie “Erin
Brockovich.” Seven years
later, The Chicago Tribune
raised questions about a
study by Dr. Paustenbach
on the safety of flame
retardants. And a 2013
article by the Center for
Public Integrity examined
his efforts to roll back a
proposal concerning
workplace safety.
Dr. Paustenbach has
insisted that ChemRisk’s
work is scientifically sound
and ethical, adding that
plaintiffs’ lawyers have
been behind the attacks
on its credibility. And until
recently, the company had
never sued any
publications or writers for
defamation.
But the firm is now locked
in a legal fight with some
unlikely and defiant
opponents: two
environmental activists
who published an unpaid
article in The Huffington
Post about ChemRisk’s
work related to the
Deepwater Horizon oil spill.
“If they had not said a
word and let it go, it would
have slipped off into
obscurity,” said one of the
authors of the article,
Karen Savage, a former
middle-school math
teacher who noted that the
article was initially read by
only 400 people.
The lawsuit against Ms.
Savage, 49, and her co-
defendant, Cherri Foytlin,
42, highlights how the
Internet has blurred the
line between activists and
journalists. But it also
raises questions about
why ChemRisk is pursuing
the case when it chose not
to sue a more formidable
adversary, The Wall Street
Journal, against which it
raised similar complaints.
Thomas Clare, a lawyer
who has long represented
Dr. Paustenbach, said the
researcher was traveling
and unavailable for an
interview. In a statement,
Chemrisk, which is now a
unit of Cardno ChemRisk,
said its goal in bringing the
action was to “set the
record straight and alert
anyone who chooses to
publish false claims that
they will be held
accountable.”...
newspaper and a
small-time blogger
say the same
thing, why do
these people sue
the blogger who
gets very few hits,
but not the big
news source?
Years After Criticism
of Its Practices,
Science Consultant
Pushes Back
By BARRY MEIER
NYT
OCT. 11, 2015
Karen Savage, a former
middle-school math
teacher. Ms. Savage said
that she and Cherri Foytlin
rejected an earlier offer
from ChemRisk to drop the
case if they retracted their
article about the company
and its Deepwater Horizon
report.
Dr. Dennis Paustenbach,
the head of the scientific
consulting firm ChemRisk,
has long been a leading
expert for companies
under legal fire for
environmental practices or
product safety. He and his
firm have also drawn the
scrutiny of investigative
journalists.
In 2005, The Wall Street
Journal reported on a
controversial role
ChemRisk played during
the case that became the
basis for the movie “Erin
Brockovich.” Seven years
later, The Chicago Tribune
raised questions about a
study by Dr. Paustenbach
on the safety of flame
retardants. And a 2013
article by the Center for
Public Integrity examined
his efforts to roll back a
proposal concerning
workplace safety.
Dr. Paustenbach has
insisted that ChemRisk’s
work is scientifically sound
and ethical, adding that
plaintiffs’ lawyers have
been behind the attacks
on its credibility. And until
recently, the company had
never sued any
publications or writers for
defamation.
But the firm is now locked
in a legal fight with some
unlikely and defiant
opponents: two
environmental activists
who published an unpaid
article in The Huffington
Post about ChemRisk’s
work related to the
Deepwater Horizon oil spill.
“If they had not said a
word and let it go, it would
have slipped off into
obscurity,” said one of the
authors of the article,
Karen Savage, a former
middle-school math
teacher who noted that the
article was initially read by
only 400 people.
The lawsuit against Ms.
Savage, 49, and her co-
defendant, Cherri Foytlin,
42, highlights how the
Internet has blurred the
line between activists and
journalists. But it also
raises questions about
why ChemRisk is pursuing
the case when it chose not
to sue a more formidable
adversary, The Wall Street
Journal, against which it
raised similar complaints.
Thomas Clare, a lawyer
who has long represented
Dr. Paustenbach, said the
researcher was traveling
and unavailable for an
interview. In a statement,
Chemrisk, which is now a
unit of Cardno ChemRisk,
said its goal in bringing the
action was to “set the
record straight and alert
anyone who chooses to
publish false claims that
they will be held
accountable.”...
Fired Allstate workers awarded $27M in
defamation suit
By Allen Cone
UPI
July 3, 2016
A federal jury has ordered Allstate Insurance Co. to pay
$27.1 million to four former employees after finding the
company defamed them. Photo by 360b/Shutterstock
CHICAGO-- A federal jury awarded four former Allstate
employees more than $27 million in a six-year-old
defamation lawsuit against the insurance company.
The award is expected to climb when U.S. District Judge
William T. Hart adds punitive damages for Allstate's
violations of the Fair Credit Reporting Act, the lead attorney
for the employees, Robert D. Sweeney of RDS Law LLC, told
Chicago Daily Law Bulletin on Thursday. They failed to give
them copies of the investigation report.
ADVERTISING
The employees were fired in December 2009 for allegedly
timing trades to boost their own incentive bonuses by $1.2
million. The company said it might have cost portfolios more
than $200 million over six years.
The six employees of the equity division -- Daniel Rivera,
Stephen Kensinger, Deborah Joy Meacock and Rebecca
Scheuneman -- filed the defamation lawsuit in March 2010 in
U.S. District Court in Chicago.
Allstate sent a memorandum to 355 co-workers and in a
2010 filing with the Securities and Exchange Commission
about the alleged violations.
They weren't specifically named but the six in a suit claimed it
was enough to identify them.
"If you connect the dots, you would be led to believe it was
my guys who did this," Robert Sweeney, a Chicago lawyer
representing the four former Allstate employees, told the
Chicago Tribune. "It ruined their careers."
Sweeney said the four were just buying low and selling high
while executing trades at the direction of the company.
Rivera was head of the equity division. The other three were
part of the growth team.
The lawsuit took six years to get to trial and was announced
June 21. The jury deliberated for five hours over two days,
awarding the employees $27.1 million, including $10 million
in punitive damages.
"Allstate disagrees with the jury's verdict," Allstate
spokeswoman Laura Strykowski said in a statement
Thursday. "We continue to believe in our case and are
reviewing our post-verdict options."
The company disband the equity division in October 2009,
outsourcing management of equities to Goldman Sachs. Two
months later, the four employees were terminated because
they violated the conflict of interest provision of the
company's code of ethics, according to the lawsuit.
The award is the highest defamation verdict in Illinois,
according to John L. Kirkton of the Jury Verdict Reporter, a
division of Law Bulletin Publishing Company.
"They've been out of work and underemployed for six years,
so it's a very satisfying reward," Sweeney said.
defamation suit
By Allen Cone
UPI
July 3, 2016
A federal jury has ordered Allstate Insurance Co. to pay
$27.1 million to four former employees after finding the
company defamed them. Photo by 360b/Shutterstock
CHICAGO-- A federal jury awarded four former Allstate
employees more than $27 million in a six-year-old
defamation lawsuit against the insurance company.
The award is expected to climb when U.S. District Judge
William T. Hart adds punitive damages for Allstate's
violations of the Fair Credit Reporting Act, the lead attorney
for the employees, Robert D. Sweeney of RDS Law LLC, told
Chicago Daily Law Bulletin on Thursday. They failed to give
them copies of the investigation report.
ADVERTISING
The employees were fired in December 2009 for allegedly
timing trades to boost their own incentive bonuses by $1.2
million. The company said it might have cost portfolios more
than $200 million over six years.
The six employees of the equity division -- Daniel Rivera,
Stephen Kensinger, Deborah Joy Meacock and Rebecca
Scheuneman -- filed the defamation lawsuit in March 2010 in
U.S. District Court in Chicago.
Allstate sent a memorandum to 355 co-workers and in a
2010 filing with the Securities and Exchange Commission
about the alleged violations.
They weren't specifically named but the six in a suit claimed it
was enough to identify them.
"If you connect the dots, you would be led to believe it was
my guys who did this," Robert Sweeney, a Chicago lawyer
representing the four former Allstate employees, told the
Chicago Tribune. "It ruined their careers."
Sweeney said the four were just buying low and selling high
while executing trades at the direction of the company.
Rivera was head of the equity division. The other three were
part of the growth team.
The lawsuit took six years to get to trial and was announced
June 21. The jury deliberated for five hours over two days,
awarding the employees $27.1 million, including $10 million
in punitive damages.
"Allstate disagrees with the jury's verdict," Allstate
spokeswoman Laura Strykowski said in a statement
Thursday. "We continue to believe in our case and are
reviewing our post-verdict options."
The company disband the equity division in October 2009,
outsourcing management of equities to Goldman Sachs. Two
months later, the four employees were terminated because
they violated the conflict of interest provision of the
company's code of ethics, according to the lawsuit.
The award is the highest defamation verdict in Illinois,
according to John L. Kirkton of the Jury Verdict Reporter, a
division of Law Bulletin Publishing Company.
"They've been out of work and underemployed for six years,
so it's a very satisfying reward," Sweeney said.
| News, information and ideas about our education system by Maura Larkins |
Surprise--a court sides with the powerful
Russian Opposition Leader Loses
Billionaire's Defamation Case
by Henry Meyer
Bloomberg.com
May 31, 2017
A Russian court sided with billionaire Alisher Usmanov in
his defamation lawsuit against opposition leader Alexey
Navalny on Wednesday, ordering the politician to retract
allegations about Usmanov.
The most important market news of the day.
Get our markets daily newsletter.
Navalny in March released a YouTube video about Prime
Minister Dmitry Medvedev, alleging that Usmanov and
other business people donated luxury assets and money
to a fund run by a university classmate of the head of
government in what amounted to bribery. Usmanov, who
sued over a range of accusations made by Navalny, said
his deal transferring ownership of property was a
legitimate business transaction.
Moscow’s Lyublinsky court ruled Wednesday that Navalny
should remove the video -- which has been viewed by 21
million people -- and apologize, his spokeswoman Kira
Yarmysh said in a Twitter posting. “This won’t be done,”
said Navalny, who plans to appeal the decision. “This
investigation is based on facts.”
The opposition figure, who staged the biggest protests in
five years in March under the banner of anti-corruption,
plans new rallies on June 12 in almost 220 cities and
towns. The court ruling against him will bring even more
people onto the streets, he said.
If Navalny remains in contempt of the court order, he could
potentially face criminal charges...
Russian Opposition Leader Loses
Billionaire's Defamation Case
by Henry Meyer
Bloomberg.com
May 31, 2017
A Russian court sided with billionaire Alisher Usmanov in
his defamation lawsuit against opposition leader Alexey
Navalny on Wednesday, ordering the politician to retract
allegations about Usmanov.
The most important market news of the day.
Get our markets daily newsletter.
Navalny in March released a YouTube video about Prime
Minister Dmitry Medvedev, alleging that Usmanov and
other business people donated luxury assets and money
to a fund run by a university classmate of the head of
government in what amounted to bribery. Usmanov, who
sued over a range of accusations made by Navalny, said
his deal transferring ownership of property was a
legitimate business transaction.
Moscow’s Lyublinsky court ruled Wednesday that Navalny
should remove the video -- which has been viewed by 21
million people -- and apologize, his spokeswoman Kira
Yarmysh said in a Twitter posting. “This won’t be done,”
said Navalny, who plans to appeal the decision. “This
investigation is based on facts.”
The opposition figure, who staged the biggest protests in
five years in March under the banner of anti-corruption,
plans new rallies on June 12 in almost 220 cities and
towns. The court ruling against him will bring even more
people onto the streets, he said.
If Navalny remains in contempt of the court order, he could
potentially face criminal charges...