Thursday, December 19, 2019

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Court of Appeal:

Blogger’s Defamation Action Against Times Is a SLAPP

Panel Sticks With Its Jan. 16 Decision, Finds High Court Opinion It Was Ordered to Examine to Be Irrelevant

By a MetNews Staff Writer

TED RALL

Blogger/Cartoonist

The Court of Appeal for this district yesterday reaffirmed its Jan. 16 decision upholding the capsizing of a defamation action by a blogger whose posted allegations were repudiated by the Los Angeles Times, with the panel finding no relevance to the case in light of which the state Supreme Court ordered it to reconsider its opinion.

Div. Eight yesterday held, as it did previously, that an anti-SLAPP motion by the Los Angeles Times Communications LLC and four of its employees was properly granted in response to blogger/cartoonist Ted Rall’s suit over the newspaper’s disavowal of his May 11, 2015 post on The Times’ “OpinionLA blog.”

Rall contended in the post that in 2001, he had been arrested, handcuffed and roughed up by a police officer in connection with a jaywalking ticket he insisted was undeserved; the Times found evidence lacking of any such mistreatment, said the blog should not have been published, and announced future blogs and cartoons by Rall would be barred.

Its initial statement came on July 28, 2015, under the heading, “FOR THE RECORD.” It reports that an audiotape of the encounter did not support Rall’s allegations.

There was a follow-up piece on Aug. 19, 2015, bearing the headline, “Times reaffirms decision that Ted Rall’s blog post did not meet its standards.” That second article was a report on the Times’s own investigation.

Procedural History

Los Angeles Superior Court Judge Joseph R. Kalin granted a special motion to strike the allegations of defamation, along with employment-related claims, and the Court of Appeal affirmed in January, in an opinion by Justice Elizabeth A. Grimes. The California Supreme Court granted review on April 10.

On Sept. 25, it remanded, with instructions to redecide the case in light of its decision in Wilson v. Cable News Network, Inc. There, the high court, in an opinion by Justice Leondra Kruger, held that an anti-SLAPP motion did not lie as to a reporter’s action against CNN for defamation based on telling prospective employers he had been fired for plagiarism.

The first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16—protected speech—was not met, Kruger said, declaring:

“We conclude that this claim need not be screened for merit because these privately communicated remarks were not made in connection with any issue of public significance, as the statute requires.”

Grimes’s Revamped Opinion

Grimes, in her rewritten opinion, addressed Wilson. She questioned its pertinence, writing:

“Wilson involved different facts. The court in Wilson found the plaintiff’s defamation claim did not arise from a public issue or an issue of public interest. The plaintiff was not a figure in the public eye and the allegedly defamatory statement that he committed plagiarism was privately made and did not contribute to any public debate. Thus, there is no need to reconsider our opinion regarding the defamation claims in light of Wilson.”

She pointed out that Rall’s claims “arose from the Times articles” disavowing his post, noting:

“Both articles were published in a public forum, and both concerned issues of public interest.”

Public Interest

The jurist explained:

“The note to readers concerned the accuracy of a blog posted on The Times’s website discussing allegations of police misconduct and the propriety of the LAPD policy of enforcing the city’s jaywalking laws. The former issue (police misconduct) is always a matter of public interest, and the latter (jaywalking enforcement) had been recently in the news by virtue of The Times’s reporting on the effect of $197 jaywalking fines on poor and working class Angelenos, to which hundreds of readers had responded. The accuracy—or not—of publications by The Times on these issues is likewise and necessarily a matter of public interest.

“The Times report included the same issues. In addition, when the Times report was published, the issue of The Times’s decision to stop publishing plaintiff’s cartoons and blog posts, and the claimed defamatory nature of the note to readers, had likewise become issues of public interest as a consequence of extensive media coverage.”

Second Prong

With respect to the second prong of the anti-SLAPP statute, Grimes noted that “Plaintiff has not produced evidence demonstrating a probability of prevailing on his defamation claims,” as required to defeat a special motion to strike once protected conduct is established.

She added that the “articles were absolutely privileged under Civil Code section 47,” being “fair reports” of public proceedings.

Grimes elaborated:

“Here, the focus of the Times articles was the accuracy of material published on its website, and central to that issue was the 2001 LAPD investigation of plaintiff’s complaint to the LAPD about his 2001 jaywalking arrest. That pivotal issue included the description of the complaint plaintiff made about his jaywalking arrest, the LAPD’s investigation of the officer’s conduct during the arrest, and the officer’s recording of the incident, revealing the differences between the facts found by the LAPD and plaintiff’s own version of the incident. That was a report on a “public official proceeding”—the LAPD’s investigation of plaintiff’s complaint about his jaywalking arrest. The reporting on that subject is the basis for plaintiff’s defamation claim, without which there would be no claim. And the authorities are clear that a police investigation is a ‘public official proceeding’ within the meaning of section 47(d).”

Employment Claims

The Supreme Court in Wilson said:

“Some courts of appeal…have concluded the anti-SLAPP statute cannot be used to screen claims alleging discriminatory or retaliatory employment actions. We hold otherwise.”

The Court of Appeal’s Jan. 16 decision in the Rall case likewise held that the anti-SLAPP statute does apply to such actions, and went on to find that Rall had not demonstrated a probability of success on the merits.

Grimes said in yesterday’s opinion:

“In Wilson, the court did not decide whether the plaintiff’s termination claims had the minimal merit necessary to proceed, instead remanding that issue to the Court of Appeal….On this point, plaintiff’s supplemental brief offers nothing new, based on Wilson or otherwise. We thus have no reason to conclude our original analysis was flawed.”

The case is Rall v. Tribune 365, LLC, B284566.

Representing Rall on appeal were Beverly Hills Roger A. Lowenstein, joined by Jeffrey Lewis and Sean C. Rotstan of the Rollings Hills office of Jeff Lewis Law. Acting for Los Angeles Times Communications LLC were Kelli L. Sager, Rochelle Wilcox, Dan Laidman, Diana Palacios, and Jeff Glasser of Davis Wright Tremaine.