Thursday, May 4, 2017
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C.A. Upholds Anti-SLAPP Ruling in Suit Against Journalists
Panel Rejects Claim That Arrangement Between Station and Nonprofit Was Tainted by Conflict of Interest
By KENNETH OFGANG, Staff Writer
A lawsuit challenging a contract between a college-affiliated broadcaster and a nonprofit journalism organization, on the ground that the executive director of the nonprofit had a conflict of interest as a member of the college faculty, was properly stricken under the anti-SLApp statute, the Fourth District Court of Appeal ruled yesterday.
Div. One held that the suit targeted the free speech rights of the nonprofit, Investigative Newsource, known as inewsource. It also held that the “public interest” exception to the anti-SLAPP statute did not apply, and that the plaintiff, San Diegans for Open Government, failed to demonstrate a likelihood that it would prevail on the merits.
The plaintiff, San Diegans for Open Government, known as SDOG, has litigated a number of suits—including California Public Records Act, Ralph M. Brown Act, and California Environmental Quality Act cases—against various governmental entities in San Diego and neighboring counties. inewsource, in a series of articles over the last 27 months, has reported that the group is actually controlled by its attorney, Cory Briggs—SDOG denied this in its court papers—and has suggested that some of the group’s litigation is tainted by conflicts of interest based on Briggs’s wife’s work for agencies that he has sued, at the same time public documents listed her as vice president of his law corporation.
inewsource was founded in 2009 by journalist Loretta Hearn. Since 2012, it has operated from the facilities of KPBS, the public radio and television service of San Diego State University.
The relationship between inewsource and KPBS is the result of a contract that gives Hearn’s organization access to KPBS facilities in exchange for the rights to the nonprofit’s content. inewsource and KPBS have since worked in tandem to produce more than 200 stories on matters of public interest.
Dollar Lease
In 2015, the original agreement was extended, with inewsource agreeing to pay a dollar in rent and to continue to produce content that, as KPBS’s station manager described it, “enhance[s] the coverage that KPBS can provide to its audience.”
After inewsource began exploring the conflict-of-interest questions, and after Briggs’s wife’s employer paid the City of San Diego $143,000 to settle a claim based on related allegations, SDOG sued inewsource, Hearn, SDSU, and related defendants for violation of Government Code §1090, which generally prohibits a public employee from participating in the formation of a contract between the employer and an entity in which the employee has an interest.
The basis of the alleged violation was that Hearn was both an SDSU faculty member and the inewsource executive director when the original contract and the extension were negotiated.
The defendants moved to strike the complaint as a SLAPP. They contended that Briggs had targeted their right to gather and disseminate news, and that there was no conflict of interest because Hearn had no administrative or policy role at SDSU or KPBS, and thus could not have influenced KPBS’s stance in the contract negotiations.
In support of that position, the defendants produced a declarations from the station manager, saying she and the station’s news director alone had negotiated the contracts on behalf of the station. Hearn explained that at the time of the original contract, she was a volunteer guest lecturer at the school, and that when the deal was extended, she was an adjunct professor teaching a single course.
She had never, she declared, been an administrator or a tenured or tenure-track professor at the university, nor had she ever worked for KPBS or the nonprofit entity that provides it with administrative support, or served on that entity’s board.
Trial Court Ruling
San Diego Superior Court Judge Eddie C. Sturgeon granted the anti-SLAPP motion. He ruled that the statute applied because the targeted contracts were “inextricably related” to newsgathering, and that the “public interest” exception of Code of Civil Procedure §425.17 did not, by its terms, apply because the suit was “based upon contracts to investigate and report on the news.
SDOG, he added, did not present “competent and admissible evidence” showing it was likely to prevail if given a trial on the merits.
Justice Gilbert Nares, writing for the Court of Appeal, agreed.
He rejected SDOG’s contention that the suit targeted the defendants’ “self-dealing” and not their newsgathering activity. He added that the newsgathering exception to the public interest exception applied because the statute “is not concerned with motive,” but rather “is intended to protect news media engaged in newsgathering and reporting, conduct SDOG’s lawsuit challenges by its attack on the inewsource-KPBS contracts.”
Because the defendants established that free speech was implicated, the justice went on to say, the burden shifted to the plaintiff to show that it was likely to prevail on the merits, a burden it failed to bear.
Nares cited Hub City Solid Waste Services, Inc. v. City of Compton (2010) 186 Cal.App.4th 1114, which upheld a judgment in favor of the city, based on defendant having bribed the city’s former officials in order to obtain an exclusive franchise. The court held that the owner of the defendant company, previously a waste management consultant for the city, had sufficient influence over the city’s award of the franchise to be considered a public official under §1090.
“Unlike the facts in Hub City… here there was no admissible evidence showing Hearn hired public employees, acted as director of any public agency or department, or oversaw any public function,” the justice wrote. “Unlike Hub City, there is no evidence in this record showing Hearn was involved in KPBS’s decision to enter into the 2012 Agreement and 2015 lease, much less ‘intricately involved.’”
The case is San Diegans for Open Government v. San Diego State University Research Foundation (Investigative Newsource), 17 S.O.S. 2301.
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