Thursday, February 26, 2009
Court of Appeal Strikes Defamation Complaint Against NBC
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday struck a complaint filed by the parent of the owner of the STAPLES Center against NBC, alleging that the television network’s broadcast of a report regarding the arena’s purportedly inadequate fire protection measures was slanderous.
Anschutz Entertainment Group Inc., whose subsidiary, L.A. Arena Company LLC, owns the 950,000-square foot facility, could not recover damages from the media company because it was not named in the retraction demands served on NBC, Div. Five ruled.
In an unpublished portion of the opinion, the panel upheld Los Angeles Superior Court Judge Robert L. Hess’ order denying the network’s anti-SLAPP motion regarding L.A. Arena’s cause of action, concluding that the offending broadcasts were not presentations of opinion.
Hess also concluded that even if the First Amendment protected truthful reporting of matters of public concern, the arena owners had presented a prima facie showing that the objective facts conveyed in the broadcasts were false.
Over the course of three days in December 2006, NBC repeatedly aired promotional segments touting an “exclusive investigation” about the safety of the arena in the event of a major conflagration. On Dec. 19, it televised a report in which broadcaster Paul Moyer said the arena had opened before the fire systems for the facility were operational.
After the broadcasts, Barry B. Langberg and Deborah Drooz of Strook & Strook & Lavan LLP served a retraction demand on the producer of the segment, Frank W. Snepp III, and the television station. The letter stated that the attorneys represented L.A. Arena only.
Langberg and Drooz later sent another letter after discovering the network had posted the transcript of the Dec. 19 broadcast on its website and demanded that the transcript be removed. This letter also failed to mention Anschutz.
The arena owners filed a complaint against Snepp, NBC Universal Inc. and NBC Subsidiary (KNBC-TV) Inc. in May 2007, based on the promotional segments the network had aired prior to broadcasting the Dec. 19 report.
They filed a second complaint a little over a month later, asserting claims based on the Dec. 19 broadcast and Internet posting.
The defendants filed special motions to strike both complaints, asserting that the arena owners’ claims arose from the defendants’ exercise of their right to free expression, but the trial court denied the motions.
On appeal, the defendants argued that their motion to strike Anschutz’s second complaint should have been granted because the retraction demands had failed to satisfy the requirements of Civil Code Sec. 48a(1), which provides that a plaintiff can recover no more than special damages unless the plaintiff had served the broadcaster with a written notice specifying the wrongful statements and demanding correction.
Presiding Justice Paul Turner wrote on appeal that the plain language of Sec. 48a(1) “requires the plaintiff to serve the retraction demand; not the plaintiffs’ wholly owned subsidiary or a company known in the local community to own the party named in the retraction demand.”
Reasoning that the explicit identification of a potential plaintiff in the retraction demand furthers the judicially recognized legislative purpose of allowing a journalist to determine the necessity or scope of the demanded correction, he concluded that “[m]erely stating a wholly owned subsidiary is seeking a retraction does not preserve the rights of a parent corporation to pursue general damages.”
Turner further concluded that special damages were unavailable because they had not been pled with specificity and Anschutz had not made and showing justifying an award of exemplary or punitive damages.
In the unpublished portion of the case, the justice rejected the defendants’ contention that the offending broadcasts were non-actionable opinion, noting that the Dec. 19 report conveyed factual messages in clear, unambiguous language by an experienced journalist and concluding a reasonable viewer would have considered the broadcast a factual presentation.
Turner also explained that the interrogative language posing hypothetical questions about the safety of the STAPLES Center in the promotional broadcasts was also not entitled to constitutional protection because a reasonable trier of fact could conclude the questions implied answers that were provably false factual assertions.
As for the defendant’s argument based on Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469—which held that states cannot impose sanctions on the publication of truthful information contained in public records—Turner noted that neither the Supreme Court nor the California high court had found a constitutionally based fair reporting privilege in a defamation context.
But even assuming that the truthful allegation of misconduct by a defamation plaintiff in a public document could not be punished, Turner reasoned the defendant would still be potentially liable to the arena owners because they had presented a prima facie showing that the reports were not fair reports of public records.
Justices Orville A. Armstrong and Sandy R. Kriegler joined Turner in his opinion.
Snepp and NBC were represented by Gary L. Bostwick and Jean-Paul Jassy of Bostwick & Jassy LLP.
Barry B. Langberg, Deborah Drooz and Michael J. Niborski of Strook & Strook & Lavan LLP represented Anschutz and L.A. Arena Company.
The case is Anschutz Entertainment Group, Inc. v. Snepp, B206789.
Copyright 2009, Metropolitan News Company