Tuesday, July 29, 2003
C.A. Throws Out Part of Suit Over Coverage of Pooh Litigation
But Div. Seven Rules Reporter Likely to Prevail on Claim Disney Libeled Her
By KENNETH OFGANG, Staff Writer/Appellate Courts
A journalist who claims she was fired because the Walt Disney Company did not like her coverage of its conduct in the Winnie-the-Pooh litigation had a portion of her suit against the company thrown out by this district’s Court of Appeal yesterday.
Div. Seven, in an opinion by Justice Earl Johnson Jr., said that Nikki Finke’s suit was based in part on constitutionally protected conduct and that Los Angeles Superior Court Judge Gregory Alarc´on erred in denying Disney’s anti-SLAPP motion in its entirety.
Johnson cited Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, in which the court held that “a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’”
The panel however found that Finke is likely to prevail on all but two of her causes of action.
Finke, who has written for a number of publications and now writes for LA Weekly, was hired as a freelancer by the New York Post to cover the entertainment industry.
Among her assignments was the suit between Disney and the heirs of Stephen Slesinger, who acquired American merchandising rights to the Pooh character. Disney disputes the heirs’ claims that it owes them hundreds of millions of dollars in royalties.
Finke claims she lost her contract with the Post over two stories that appeared on the case last year—one detailing how Disney was sanctioned for discovery abuse and another on the heirs’ efforts to revoke Disney’s license to sell Pooh merchandise. Finke says she was told that her firing was tied directly to the Pooh stories; the Post claims there were numerous problems with Finke’s reporting.
Her complaint charged Disney with interference with contract and prospective business advantage, libel and slander, infliction of emotional distress and unfair business practices. She claims the company defamed her by calling the fairness and accuracy of her reporting into question, and that it caused her firing by threatening to pull its advertising from the Post if she continued to write for the paper.
Alarc´on denied the company’s motion to strike the action as a strategic lawsuit against public participation, saying Disney could not show that all of the acts giving rise to the litigation were done in furtherance of free speech and in connection with a public issue.
But the trial judge was mistaken in taking an “all or nothing” approach, Johnson wrote for the Court of Appeal. He disagreed with Alarc´on’s conclusion that the alleged threats and defamation were not made in connection with an issue in the Pooh litigation.
“...Disney’s attack on Finke’s fairness and accuracy did not occur in a vacuum,” the justice wrote. “It occurred in the context of her reporting on the Pooh litigation and cannot reasonably be divorced from that context. Therefore, Disney’s alleged defamation falls within [the anti-SLAPP law’s] protection for statements made in connection with an issue under consideration or review by a judicial body.”
But under the statute, Johnson noted, establishing that the conduct is statutorily protected does not establish that the suit is a SLAPP; it merely shifts the burden to the plaintiff to prove that she will probably prevail on the merits. Finke, he said, did that with respect to all but the slander and unfair business practices claims.
Johnson cited a letter from Disney President Robert Iger to Col Allan, the Post’s editor-in-chief. Iger not only criticized Finke’s discussion of the case as inaccurate and distorted, the justice noted, he accused her of intending “to injure the Walt Disney Company.”
That is a libelous allegation, the justice wrote.
“Deliberately slanting an article with the intent to injure a person and knowingly making statements which are ‘absolutely false’ is clearly unethical behavior on the part of a journalist,” Johnson explained, adding that Disney is unlikely to show that Iger’s statements were true or that he acted without malice.
“Suffice it to say we have reviewed the discovery sanction orders in the Pooh litigation, Finke’s articles, Finke’s declaration, and the declarations submitted on Finke’s behalf, and have concluded Finke has shown a reasonable probability of proving Iger’s allegations she made false statements in her articles are themselves false,” the justice wrote.
The appeal was argued by Patricia L. Glaser of Christensen, Miller, Fink, Jacobs, Glaer, Weil & Shapiro for Disney and by Clyde M. Hetrrick of O’Donnell & Shaeffer for Finke.
The case is Finke v. Walt Disney Company, B160267.
Copyright 2003, Metropolitan News Company