California Appellate Court Vacates Discovery Order in SLAPP Suit, Holds Freelance Journalist Did Not Defame Publisher
September 3, 2008
Charles D. "Chuck" Tobin- Washington
A California Court of Appeal has granted a rare interlocutory writ, vacating a discovery order in a defamation action and holding that the underlying statements were not actionable.
The court, ruling in an anti-SLAPP (Strategic Lawsuit Against Public Participation) proceeding, determined that freelance journalist Susan Paterno’s reporting, in a December 2006 American Journalism Review (AJR) article, could not support a cause of action by newspaper publisher Ampersand Publishing LLC. The appeals court sent the case back to the trial court, where it will likely be dismissed.
The litigation arose out of Paterno’s behind-the-scenes look at the turmoil at Ampersand’s newspaper, the Santa Barbara News-Press. Ampersand alleged Paterno’s account of the firing or resignation of dozens of the newspaper’s journalists was biased, false, and hurt the newspaper’s circulation.
Paterno filed a special motion to strike the complaint under the anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16. The statute permits a defendant who engages in lawful expression to avoid the chill of invasive discovery and protracted litigation. While affidavits are typical in anti-SLAPP proceedings, all discovery is automatically stayed unless a party demonstrates “good cause.”
Ampersand filed a responsive motion asserting that it needed expedited discovery on the issue of actual malice in order to oppose the motion to strike. The discovery motion required the trial court to review the statements at issue and determine whether, based on their actionability, Ampersand had demonstrated sufficient “good cause” for discovery. The court found that Ampersand failed to meet its burden of showing a probability of prevailing on 29 of the 33 statements. However, the court found that Ampersand established a sufficient showing as to four of the statements and therefore had met the “good cause” standard for the discovery.
The trial court continued the anti-SLAPP hearing and issued an order permitting Ampersand to pursue discovery. Paterno promptly filed a petition for writ of mandate with the Court of Appeal.
In granting Paterno’s petition, the Court of Appeal held that the trial judge had abused his discretion by permitting discovery. The appeals court initially noted that “[t]rial judges should refrain from ordering ‘unnecessary, expensive and burdensome’ discovery proceedings ‘if it appears from the SLAPP motion there are significant issues as to falsity or publication – issues which the plaintiff should be able to establish without discovery.’” Reviewing the statements before it, the appeals court then held that Ampersand did not introduce sufficient evidence to establish a prima facie case of false or unprivileged statements of facts.
For example, two of Paterno’s statements concerned the News-Press’ handling of a story about the drunk-driving arrest of the editorial page editor, who had remained loyal to Ampersand during its battle with other journalists. Paterno reported that News-Press management had issued an order to “kill” a follow-up story about his sentencing. Ampersand argued that the reporting was false because Paterno omitted facts that, according to Ampersand, would have presented its side of the story.
The appeals court rejected Ampersand’s “novel theory of liability,” holding that “[t]here is no constitutional mandate requiring the press to adopt a ‘he said, she said’ style of reporting.” Moreover, the court shared the disbelief the defense encouraged in its briefs about a newspaper’s decision to challenge a critique in court:
It is ironic that Ampersand, itself a newspaper publisher, seeks to weaken legal protections that are intended to secure the role of the press in a free society. Newspapers and publishers, who regularly face libel litigation, were intended to be one of the “prime beneficiaries” of the anti-SLAPP legislation.
The court further held that Paterno’s report about Ampersand’s pursuit of a restraining order, on behalf of one employee against another, was privileged under Cal. Civ. Code 47(d) as a fair report of an official judicial proceeding. Finally, the appeals court rejected Ampersand’s defamation claim against the article’s characterization of employees’ complaints that News-Press management had “slashed” employee benefits and overtime pay. The court squarely held that “slashed” was a constitutionally-protected expression of the employees’ opinions, was incapable of being proven false, and that Ampersand’s admission that it no longer matched 401(k) contributions had supplied a sufficient basis in fact for the statement.
In addition to issuing the writ reversing the discovery order, the appeals court also said that, on remand, the trial court should consider whether to grant Paterno’s request for her fees in both the appellate and trial levels pursuant to the anti-SLAPP statute.
Holland & Knight represents freelance journalist Susan Paterno in this matter.
For more information, contact:
Judith F. Bonilla
202.419.2546
judith.bonilla@hklaw.com
Charles D. Tobin
202.419.2539
charles.tobin@hklaw.com
toll free: 1.888.688.8500
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