Tuesday, September 21, 2010
C.A. Rejects Official’s Suit Against San Francisco Chronicle as SLAPP
By KENNETH OFGANG, Staff Writer
A libel suit by an Oakland City Council member against the San Francisco Chronicle was correctly stricken under the anti-SLAPP statute, the First District Court of Appeal has ruled.
Div. Four, in an unpublished opinion by Presiding Justice Ignacio Ruvolo, said an Alameda Superior Court judge correctly ruled that the allegedly libelous column by the Chronicle’s Chip Johnson was a “fair and true report of a public proceeding” and thus absolutely privileged under Civil Code Sec. 47(d)(1). The opinion was filed last Thursday.
Desley Brooks claimed, in her 2008 complaint, that Johnson defamed her in a June 2008 column that centered on Deborah Edgerly, who was Oakland’s city administrator before resigning in the wake of an incident in which she allegedly interfered with police officers who arrested her nephew.
While Johnson has written a number of columns critical of Brooks as well, the libel suit centered on a sentence in the column about Edgerly, in which Johnson urged an independent investigation of Oakland City Hall. Recounting a number of misdeeds, he insisted that “nothing was done when allegations of illegal kickbacks were raised against District Six Councilwoman Desley Brooks, another of Edgerly’s allies, after police investigators linked bank deposits made by the mother of one of Brooks’[s] employees to several personal checks for $1,200 written to Brooks (exactly half the employee’s paycheck).”
In support of its anti-SLAPP motion, the Chronicle presented evidence that both the city’s Public Ethics Commission and the county’s district attorney had investigated allegations that Brooks had employed her boyfriend’s daughter, Christen Tucker, in a salaried position, even though the woman was attending Syracuse University fulltime, and that the council member had received a portion of the woman’s salary as a kickback.
No action was publicly taken as a result of those investigations, but the trial judge said the Johnson column “was not provably false” and was thus absolutely privileged. “An ordinary reader, learning that Councilwoman Brooks was being officially investigated for kickbacks in connection with the employment of a staff member, would have the same opinion of Councilwoman Brooks whether or not the challenged phrases were part of Mr. Johnson’s column,” the judge wrote.
Ruvolo, writing for the Court of Appeal, agreed.
He explained that Brooks did not dispute that the suit implicated the newspaper’s free speech rights, so the plaintiff had the burden of proving that she was likely to prevail on the merits. She failed to do so, the presiding justice wrote, because the “gist or sting” of the sentence referring to Brooks was that she had been investigated for certain improprieties, which was generally true.
Ruvolo rejected the contention that the report was “an outright lie or falsehood” because it included an erroneous implication that Tucker’s mother had written checks to Brooks while she was in office, when in fact the woman had died before Brooks was elected. Brooks insisted that she had reviewed her bank records and that no employee or person acting on behalf of an employee had deposited any funds into her account.
The presiding justice noted that California courts have held the “fair and true report” privilege applicable to reports that included some errors. He cited, among other cases, Jennings v. Telegram-Tribune Co. (1985) 164 Cal.App.3d 119, which applied the privilege to an article reporting that the plaintiff had been convicted of tax fraud and tax evasion, where the plaintiff actually pled no contest to two counts of failing to file tax returns, which were misdemeanors.
While the descriptions of the offenses were “perhaps overblown or exaggerated,” the court said, they did not materially alter the gist or sting of the news reports that plaintiff had been convicted of “several serious tax crimes.”
The case is Brooks v. San Francisco Chronicle, A125046.
Copyright 2010, Metropolitan News Company