Monday, October 15, 2001
Suit Designed to Thwart Newspaper Story Was SLAPP, C.A. Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
A lawsuit by the American Humane Association seeking to block the Los Angeles Times from using internal association documents for a news story was a strategic lawsuit against public participation, this district’s Court of Appeal ruled Friday.
The association, citing attorney-client privilege and the work-product doctrine, argued that the Times had no right to use the materials for a story detailing charges that the AHA—which monitors the use of animals in films—had covered up several instances of mistreatment.
But Court of Appeal Presiding Justice Paul A. Turner said that by asking for injunctive relief, the association “sought a clearly unconstitutional prior restraint on the freedom of the press under either the United States or California Constitutions.”
The Times ran a lengthy story on Feb. 9 of this year—two weeks after Los Angeles Superior Court Judge Dzintra Janavs denied the association’s request for a temporary restraining order—reporting charges by animal rights activists as well as some of the association’s own staff members.
Among the allegations were conflict-of-interest charges against Gini Barrett, who has since left her post as head of the association’s regional office, and Tiffany R. Hedgpeth, a Los Angeles attorney who was in charge of investigations for the AHA film unit.
Barrett, while long involved with animal rights causes, is a former executive of the Alliance for Motion Picture and Television Producers with strong political connections through her former role as head of the alliance’s political action committee and her marriage to ex-Assemblyman Richard Katz.
Many activists accused Barrett—who had announced her intended departure from the association position before the Times story was published—of exerting pressure on behalf of producers involved in controversies concerning use of animals.
The association sued after learning that the Times was in possession of a confidential report by Gregory F. Hurley, an attorney retained by the AHA—which is not affiliated with the Humane Society of the United States—to investigate allegations regarding Barrett and Hedgpeth.
Hurley was retained after the allegations were raised in a Colorado wrongful-termination suit by the AHA’s former president, who claimed he was fired for reprimanding Barrett and Hedgpeth and insisting on stronger measures to prevent conflicts of interest.
Hurley concluded that Hedgpeth had a conflict because she dated two Hollywood trainers whose animal compounds she was responsible for overseeing, and that Barrett knew of the relationships, and even encouraged one of them.
In suing, the AHA sought declarations that Hurley’s report was protected by the lawyer-client and work-product privileges and that the association hadn’t waived the privileges, and sought to enjoin the Times from “publishing” the report or using it in a story.
Janavs heard the request for a TRO on Jan. 25 of this year, denying it because it involved “a classical prior restraint of speech situation.”
That same day, the association filed a voluntary dismissal of the action, without prejudice, and the Times filed an anti-SLAPP motion under Code of Civil Procedure Sec. 425.16.
The motion was heard by Los Angeles Superior Court Judge Madeline Flier. The judge agreed with the Times that the plaintiff would probably not prevail if the suit went forward. But she denied the motion on the ground that the Times “failed to meet the burden to show the action arises out of the exercise of free speech.”
Flier also ruled that even if the motion had been granted, the Times was not entitled to attorney fees and costs because it failed to document them in the moving papers.
The Div. Five panel reversed and remanded for a fee and costs award.
Turner explained, in an unpublished portion of his opinion, that under a series of cases, an anti-SLAPP motion is not rendered moot by the filing of a voluntary dismissal, as the defendant still has the right to seek attorney fees. This is particularly true, Turner said, where the case could be refiled.
Flier, he went on to say, was correct in concluding that the plaintiff would probably not prevail—since there was no question that it was seeking an impermissible prior restraint. But the trial judge was wrong to say that this wasn’t a First Amendment case, Turner said.
Even if the plaintiff was motivated by a desire to protect privileges, the jurist explained, the suit was still subject to Sec. 425.16.
“In addressing the initial burden of proof, section 425.16, subdivision (b)(1) focuses on whether the cause of action arises out of the defendant’s First Amendment activities, not the plaintiff’s motivation,” Turner wrote. Once the defendant bears its burden on that issue, he explained, the burden shifts to the plaintiff to show a probability of prevailing, and only then might motive become relevant.
In this case, however, the plaintiff couldn’t prevail, regardless of motive, because it had no evidence the Times came into possession of the report illegally, the jurist explained.
In the published portion of the opinion, Turner said the trial judge erred in denying attorney fees and costs.
There is no requirement that the award be sought in the original motion, he said. The moving party need only include a notice in the moving papers that fees and costs will be sought; the amounts can be documented later via a noticed motion or cost memorandum, Turner said.
Attorneys on appeal were Kelli L. Sager, Alonzo Wickers IV, and Rochelle Wilcox of Davis Wright Tremaine and Karlene Goller for the Times and Michael St. Denis and Kandace Rayos of Sheppard, Mullin, Richter & Hampton for the humane association.
The case is Los Angeles Times Communications v. American Humane Association, B148732.
Copyright 2001, Metropolitan News Company