...
Bloggers take aim at
city governments --
and hit home

Some websites are
watchdogs, others are
just scurrilous...

By Jonathan Abrams,
Times Staff Writer

The anonymous blogger
posted documents on his
website that, he said,
showed that Mayor
Maryetta Ferre and
Mayor Pro Tem Lee Ann
Garcia were beholden to
developers putting up
big-box stores such as
Lowe's.

"We need to recall them
now," "Grandpa Terrace"
fumed a year ago. "We
don't want more traffic,
more crime, dayworkers
just to bring in some
pocket change, when the
cost to the city will go up
to combat the problems
brought by these types of
development."

His rants helped fuel a
recall effort last year
against the two council
members. Although the
campaign ultimately
failed, his blog was
another example of the
growing influence of
citizen journalists roiling
communities across
Southern California,
many of which rarely are
covered by newspapers
or other traditional media
outlets.
..

It may only be a matter of time
before bloggers start to have
a major influence in local
politics and policymaking...

In Grand Terrace, the recall
effort fell about 500
signatures short of the 1,506
needed to trigger the election.
A citizen-driven group, buoyed
by the blog, collected
signatures at a Stater Bros.
market and mailed petitions
to residents.

"For years the city of Grand
Terrace tried to keep
residents in the dark," said
resident Jo Springfield, a
strong supporter of the recall
effort. "The blog enlightened
many residents to start
asking questions and going
to meetings."

Several bloggers interviewed
by The Times insisted on
anonymity, saying they feared
a backlash from city officials.

All said they were residents of
the area they report on and
got involved because their
community did not receive
enough coverage from the
traditional media.

"We want our words to stand
on our own, and with
anonymity, the only way
someone can judge us is by
what we write," said Publius
of the Foothill Cities News
Blog, who takes his
pseudonym from the Roman
whose name was used by
Alexander Hamilton, John Jay
and James Madison when
they wrote the Federalist
Papers...

The Foothill Cities Blog,
which covers several cities in
the San Gabriel Valley, was
the first to report that
Assemblywoman Nell Soto
(D-Pomona) was absent from
the Capitol for 25 days
because of pneumonia. It
was later reported that she
still collected more than
$20,000 in per diem pay...

But the praise is mixed with
criticism aimed at Pomona
officials. The site drew the ire
of administrators in May after
posting that its city manager
was forced to step down �
which city officials said was
untrue...

Pomona City Atty. Arnold M.
Alvarez-Glasman sent a
cease-and-desist letter to the
website, ordering it to remove the
post.

"While the City of Pomona
strongly supports an
individual's First Amendment
Rights � it is difficult to
respond to anonymous
fabrications such as those
published by you in your
web-site publication," he
wrote.

The website took down the
post but enlisted free-speech
attorney Jean-Paul Jassy to
respond.

"In many ways, these kinds of
sites are at the cutting edge
and more modern vision of
commentary," Jassy said.
"The Constitution and the U.S.
Supreme Court placed a high
premium on making sure
freedom of speech is
protected, especially when it
comes to commenting on
public officials."

It is the anonymity that
separates the bloggers from
professional journalists, said
Michael Parks, director of the
journalism program at USC's
Annenberg School for
Communication.

"Journalists need to accept
responsibility for their
reporting and comments, and
that provides for them to be
identified," said Parks, a
Pulitzer Prize-winning reporter
who is a former editor of the
Los Angeles Times.

"Anonymous blogs are
similar to writing something
up, not signing it and putting it
on a bulletin. It's more social
commentary than anything."

Although blogs are protected
under the 1st Amendment,
they are vulnerable to libel
lawsuits, said Erwin
Chemerinsky, a Duke
University constitutional law
professor.

They present unique 1st
Amendment challenges.

"They cannot have defamatory
speech any more than a
traditional media type;
however, the difficulty with an
anonymous blog is who is
actually doing the blogging?"
he said. "And if you ask a
server to take it down, what
happens if they refuse?"

Two years ago, the Delaware
Supreme Court ruled that an
elected official who makes a
defamation claim against an
anonymous blogger must
have substantial evidence to
support the claim. Otherwise
the lawsuit could not proceed
and the blogger would remain
masked.

A similar case has yet to be
heard in California.

The California Supreme
Court, however, ruled last
year that Internet service
providers and bloggers
cannot be held liable for
posting defamatory material
written by someone else. The
case was brought by two
doctors who said they were
defamed by a San Diego
activist for victims of problem
breast implants who called
one doctor "arrogant and
bizarre" and the other "a bully
and a Nazi."

In Claremont, former Mayor
Diann Ring threatened the
Claremont Insider blog with a
defamation suit.

The blog has criticized moves
by the city's landscaping and
lighting district assessments
and targeted former city
officials, including Ring, for
contracting with a water
agency outside the city...

For all the furor the blogs
create, city officials could take
a cue from Fontana Mayor
Mark Nuaimi.

Nuaimi routinely posts on a
blog in his city and said he
welcomed it as a way to
communicate with citizens...
Los Angeles Times, July 23,
2007
THOMAS C. EVANS, Plaintiff and Respondent,
v.
LINDA A. EVANS, Defendant and Appellant

CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE STATE OF CALIFORNIA
Filed 5/12/08D051144 (Super. Ct. No. GIC881162)

APPEAL from an order of the Superior Court of San Diego County, Patricia Cowett, Judge. Reversed and
remanded. Linda A. Evans, in pro. per., for Defendant and Appellant.

Harrison Patterson & O'Connor and Harry W. Harrison for Plaintiff and Respondent.

Thomas Evans (Thomas), a deputy sheriff, sued his former wife, Linda Evans (Linda), and Linda's
mother, alleging numerous causes of action, including harassment, defamation, and breach of privacy.

The court then granted Thomas's motion for preliminary injunction, and entered an order enjoining Linda
and her mother from: (1) publishing "false and defamatory statements" about Thomas on the Internet; (2)
publishing "confidential personal information" about Thomas on the Internet; and (3) contacting Thomas's
employer (the San Diego County Sheriff's Department) "regarding [Thomas]" except to call "911 to report
criminal conduct."

Linda appeals from the order, raising numerous contentions.

We conclude the preliminary injunction was overbroad and
constituted an invalid prior restraint before trial. We thus reverse
the order and remand for further hearing.

Our reversal should not be interpreted to mean that a court lacks authority to enjoin certain speech and/or
conduct. Before trial and upon a proper showing, a court may prohibit a party from having contact with
certain persons or from disclosing certain specified private information under narrowly drawn
circumstances. The order here, however, was not sufficiently tailored to satisfy constitutional standards.
Likewise, after a trial, a court may continue these prohibitions and may additionally prohibit a party from
repeating statements determined at trial to be defamatory. We reverse and remand for further
proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL SUMMARY1Thomas is a law enforcement officer with the San Diego
County Sheriff's Department. He and Linda were married in 1985, and separated in 1998. In 2002, the
court entered a judgment dissolving the marriage. During the next five years, the parties had substantial
ongoing conflict over custody, child support and other issues. The family court has held numerous
hearings, and those hearings continue through the present time. In March 2007, Thomas filed a
complaint against Linda, alleging harassment (Code Civ. Proc, § 527.6), slander and defamation, various
common law torts, breach of privacy claims, and breach of contract. The gist of the allegations was that
Linda has engaged in a series of acts intended to harass Thomas and cause him severe emotional
stress and injury to his reputation and career. The complaint sought damages and equitable relief...

DISCUSSION

In challenging the preliminary injunction, Linda raises numerous arguments. In Part I, we conclude the
order must be reversed because it is overbroad, vague, and an unconstitutional prior restraint before trial.
In Part II, we briefly address two of Linda's additional challenges to the preliminary injunction and find
them to be without merit. In reaching these conclusions, we apply well-settled law applicable to
preliminary injunctions.

To show entitlement to a preliminary injunction, a plaintiff must prove a likelihood of prevailing on the
merits, and that the harm to the plaintiff from not granting the injunction outweighs the harm to the
defendant if the injunction is issued pending trial. (Butt v. State of California (1992) 4 Cal.4th 668,
677-678.)

"The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors;
the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction."
(Ibid.) ...
Defamation cases
The Laconic Law Blog

$3.5 Million Defamation
Case Dismissed On
Remand

According to The VLW Blog,
the Fairfax County Circuit
Court has dismissed on
remand the defamation
claims of a former Raytheon
executive who won one of
the largest jury verdicts in
Virginia in 2005.


The VLW Blog reports:

“Cynthia Hyland had been
with defense contractor
Raytheon Corporation for 21
years and served as a
senior vice president prior
to being fired in 2003 after
the business unit she led
lost money. In 2005, a
Fairfax County jury awarded
Hyland $3.5 million in a suit
alleging the company
president made defamatory
remarks in Hyland’s
performance evaluation.

Fairfax Circuit Court Judge
Arthur Vieregg reduced the
$2 million punitive damage
award to the statutory cap of
$350,000, and the case
went up on appeal.

In March 2007, the Supreme
Court of Virginia reversed
Hyland’s $1.85 million
award, saying that only two
of the five allegedly
defamatory statements
cited by Hyland could
support the jury verdict. The
justices sent the case back
for another look at the
factual accuracy of
statements relating to
Hyland’s role in the bidding
process for two government
contacts and her team’s
being “off plan” on their
financial targets.

Last month, Vieregg
granted summary judgment
for Raytheon and its
president in Hyland v.
Raytheon Technical
Services, saying Hyland
admitted that she oversaw
or was the project manager
for the two government
contracts at issue and was
responsible for identified
financial losses.”

One lesson for employers
to take from this case is to
be sure that supervisors
understand that
performance evaluations
need to be truthful.  While
Raytheon ultimately
escaped liability for
defamation here, untruthful
statements made in a
performance evaluation with
actual malice can result in
liability for defamation.
'Elated' nonlawyer triumphs before appellate panel

In addition, the injunction on confidential personal information was too vague, Haller wrote. She also
said that banning contact with the Sheriff's Department was
over-broad and unconstitutional.

By Greg Moran
San Diego UNION-TRIBUNE
May 15, 2008

There's an old saying in the law – that representing yourself in court means you
have a fool for a client.

Don't tell that to Linda Evans.

[Maura Larkins comment: And don't tell it to Stutz, Artiano Shinoff & Holtz, who are
representing themselves in their defamation lawsuit against me,
Stutz v. Larkins.]

She not only represented herself, but did so at the appellate court level.

The 50-year-old Jamul resident not only won her appeal, but the bulk of the
unanimous opinion from the 4th District Court of Appeal was certified for
publication
– meaning it can be cited as precedent around the state.

Most of the thousands of decisions of the appellate courts in the state are deemed
“unpublished,” meaning the decisions apply only to that case and generally can't be
relied on elsewhere.

Only about 8 percent of the appellate court decisions are deemed published.

“I'm absolutely elated,” Evans said. “I never thought I would get it reversed.”

A self-represented litigant winning a case and getting a published opinion is “a rare
event,” said Steve Kelly, the longtime clerk for the appellate court.

Evans appealed an April 2007 injunction issued by Superior Court Judge
Patricia Cowett preventing her from publishing allegedly false and defamatory
statements
about her ex-husband on the Internet or publishing any “confidential
personal information” about him.

Her former husband, Thomas Evans, is a San Diego County deputy sheriff. After the
couple's divorce, he had sued her for harassment and defamation and sought the
injunction.

It was the latest in what the appellate court characterized as “substantial ongoing conflict”
in the couple's bitter divorce, which was finalized in 2002. They married in 1985 and
separated in 1998.

Cowett's order also prevented Linda Evans from contacting the San Diego County
Sheriff's Department except for calling 911 to report a crime.

Evans, who is unemployed and has applied for disability payments, unsuccessfully
contested the injunction before Cowett, representing herself while her husband had a
lawyer.
She contended that the injunction was an unconstitutional prior restraint
on her free-speech rights, but Cowett disagreed and issued the injunction.

At the appellate court, Evans used the court's guide for self-represented people and
received help from lawyers at the California Men's Center in San Diego, which works on
family law court issues, she said.

In the decision, Justice Judith Haller said the injunction was “constitutionally invalid” and
was too vague and overly broad. Courts can't prevent someone from uttering a
defamatory statement before a trial has been held to determine whether the statement is
defamatory, she said.

In addition, the injunction on confidential personal information was too vague,
Haller wrote. She also said that banning contact with the Sheriff's Department
was over-broad and unconstitutional.

Haller was careful to note that the court wasn't ruling on the merits of the claims Thomas
Evans made in seeking the injunction. Courts can issue such an injunction, but only with
a level of proof and only if the injunction is narrowly drawn. The matter was sent back to
reconsider the injunction in light of the appellate decision.

Harry Harrison, whose law firm represented Thomas Evans, said the ruling was one of
“procedure over substance.” He said the court relied heavily on a decision by the state
Supreme Court that came out after the injunction was issued.

Among other things, that decision said courts can prohibit people from making
defamatory statements, but only after a trial.

Linda Evans still faces a trial on the lawsuit and other legal issues. While it's a tough
road, she encourages others to followed her lead.

“You have to take the initiative to fight for your rights and your children's rights,” she said.

Shaun Martin, a law professor at the University of San Diego who writes a blog on
appellate rulings, said the ruling reiterates that “injunctions against speech are very
disfavored.” Most free-speech cases are certified for publication because the issue is of
such importance, he said.
See blog posts on
defamation
CRS/LII Annotated
Constitution First Amendment
Pfister92 the Court, after
expanding on First
Amendment grounds the
discretion of federal courts to
enjoin state court proceedings,
struck down as vague and as
... least of which are the Court's
subjection of defamation law to
First Amendment ... In United
States v. United States District
Court, 407 U.S. 297 (1972) ...


UNITED STATES DISTRICT
COURT DISTRICT OF
MASSACHUSETTS  PAUL
MCMANN V. JOHN DOE
File Format: PDF/Adobe
Acrobat - Quick View
One district court in this circuit
has allowed the case to ....
broadcast media and
striking
down an unconstitutionally
broad regulation of
cyberspace). .... figure
defamation cases. Anderson
v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). .... The
statement is so vague, that
attempting to judge its falsity,
...


United States v. Stevens (08-
769) | LII / Legal Information
Institute
The District Court sentenced
Stevens to thirty-seven months
of imprisonment. .... including
the “defamation” of religion
and depictions of criminal acts
in ... of
free speech advocates
who view § 48 as an overly
broad and vague statute. .
...
However, the United States
argues that several Supreme
Court cases held ...


Deciding communication law:
key cases in context
by Susan Dente Ross - 2004 -
Keefe, 402 US 415, 419
(1971). The District Court for
the Southern District ... [719]
The word "security" is a
broad, vague generality
whose contours should .
..
...

Reno v. ACLU (1997)
The 1996 Communications
Decency Act was ruled
unconstitutional since it was
overly broad and vague in
its regulation of speech on the
Internet, and since it attempted
to regulate indecent speech,
which the First Amendment
protects.

UNITED STATES DISTRICT
COURT DISTRICT OF
COLORADO Case No. 04-B ...
Turner Broad. Sys., Inc., v.
FCC, 512 U.S. 622 (1994) . .....
Ryan, 806 P.2d 935 (Colo.
1991), and the
hopelessly
vague and ambiguous
language of the ..... Hepps, of
course, was a case of civil
defamation, in which the
maximum penalty
...

Netlitigation | Background
Notes
In a second case interpreting
the CDA, Apollomedia Corp. v.
Reno, a three-judge panel of
the United States District Court
for the District of ... with an
intent to annoy was
NOT
impermissibly broad and
vague in violation of the First

... was liable for defamatory
messages placed on its
service by a third party. ...

The Indiana Law Blog: Ind.
Decisions - Court of Appeals
issues 8 ...
Aug 21, 2009 ... Dugan first
contends that Komorowski's
statements are defamatory per
se. ... Finding that the statute is
not unconstitutionally vague as
...
indianalawblog.com/archives/...
/ind_decisions_c_1080.html -

State of Utah v. Ian Michael
Lake
Utah's Criminal Libel Statute is
Unconstitutionally Overbroad
and Vague. ... “Courts
uniformly have held criminal
defamation statutes
unconstitutional for ... For
example, we have consistently
allowed attacks on overly
broad statutes ...
www.acluutah.org/lakemotion.
htm -

#
RCFP: Criminal defamation
law upheld in Kansas cases
May 18, 2005 · A Kansas
criminal defamation law is not
unconstitutionally vague or
overly broad because the law
only punishes speech that can
be proven ...
www.rcfp.org/newsitems/index.
php?i=4233 - Cached - Similar
-
#
Deciding communication law:
key cases in context - Google
Books Result
by Susan Dente Ross - 2004 -
Law - 352 pages
[719] The word "security" is a
broad, vague generality whose
contours should not be
invoked to abrogate the
fundamental law embodied in
the First Amendment ...
books.google.com/books?
isbn=0805846980... -
#
Canada, R v Lucas
298, 299 and 300 of the Code
are not so vague that they
infringe s. ... This portion of the
defamatory libel scheme is too
broad. ... freedom of
expression, the lower will be
the level of constitutional
protection afforded to it. ...
www.hrcr.
org/safrica/expression/r_lucas.html -
Cached - Similar -
#
Concurring Opinions » Is the
Computer Fraud and Abuse
Act ...
Is the Computer Fraud and
Abuse Act Unconstitutionally
Vague? ... Since tort law is
common law, and is very
flexible, broad, and evolving

Human rights: group
defamation, freedom of
expression, and the law ...
by Thomas David Jones - 1998
- Political Science - 319 pages
Thus, the author's proposed
model statute, a true
defamation statute, ... The very
existence of these broad and
vague policy statements
creates a chilling ...


AETA 4: Animal Rights
Demonstrators Charged With
Unconstitutional ...
May 28, 2009 ... The AETA is so
broad and unclear it could be
used to suppress lawful
protests and ... chalking
defamatory comments on
public sidewalks, ... lawyers
say its language is so broad
and vague that it could be
easily used to ...
Gilbert v. Sykes

Del Junco v. Hufnagel

Public figures in Schools

Public figure Anti-SLAPP

Free Speech

Whistle-blowers
FREEDOM OF SPEECH:
GENERAL


Virginia v. Hicks (2003)
Richmond could ban non-
residents from public
housing complexes if the
non-residents did not
have “a legitimate
business or social
purpose” for being there.
The trespass policy was
not
overbroad and did
not infringe upon First
Amendment rights.


Ashcroft v. ACLU (2004)
The Child On-Line
Protection Act violated the
First Amendment because
it was
overbroad, it
resulted in content-based
restrictions on speech,
and there were less-
restrictive options
available to protect
children from harmful
materials.

Watchtower Bible and
Tract Society v. Stratton
(2002)
City laws requiring permits for
political advocates going door to
door were unconstitutional
because such a mandate would
have a “
chilling effect”
on political
communication.


Schenck v. United States
(1919)
Freedom of speech can be
limited during wartime. The
government can restrict
expressions that “would
create a clear and present
danger that they will bring
about the substantive evils
that Congress has a right to
prevent.”

Abrams v. United States
(1919)
The First Amendment did not
protect printing leaflets urging
to resist the war effort, calling
for a general strike and
advocating violent revolution

Debs v. United States (1919)
The First Amendment did not
protect an anti-war speech
designed to obstruct
recruiting.

Gitlow v. New York (1925)
The Supreme Court applied
protection of free speech to
the states through the due
process clause of the
Fourteenth Amendment.

Chaplinsky v. New Hampshire
(1942)
The First Amendment did not
protect “fighting words” which,
by being said, cause injury or
cause an immediate breach
of the peace.

West Virginia v. Barnette
(1943)
The West Virginia Board’s
policy requiring students and
teachers to recite the Pledge
of Allegiance was
unconstitutional. Reversing
Minersville v. Gobitas (1940),
the Court held government
cannot “force citizens to
confess by word or act their
faith” in matters of opinion.

United States v. O’Brien
(1968)
The First Amendment did not
protect burning draft cards in
protest of the Vietnam War as
a form of symbolic speech.

Tinker v. Des Moines (1969)
The Court ruled that students
wearing black armbands to
protest the Vietnam War was
“pure speech,” or symbolic
speech protected by the First
Amendment.

Brandenburg v. Ohio (1969)
The Supreme Court held that
the First and Fourteenth
Amendments protected
speech advocating violence
at a Ku Klux Klan rally
because the speech did not
call for “imminent lawless
action.”

Cohen v. California(1971)
A California statute
prohibiting the display of
offensive messages violated
freedom of expression.

Miller v. California (1973)
This case set forth rules for
obscenity prosecutions, but it
also gave states and localities
flexibility in determining what
is obscene.

Island Trees School District v.
Pico (1982)
The Supreme Court ruled that
officials could not remove
books from school libraries
because they disagreed with
the content of the books’
messages.

Bethel School District v.
Fraser (1986)
A school could suspend a
pupil for giving a student
government nomination
speech full of “elaborate,
graphic, and explicit sexual
metaphor.”

Texas v. Johnson (1989)
Flag burning as political
protest is a form of symbolic
speech protected by the First
Amendment.

R.A.V. v. St. Paul(1992)
A criminal ordinance
prohibiting the display of
symbols that “arouse anger,
alarm or resentment in others
on the basis of race, color,
creed, religion or gender” was
unconstitutional. The law
violated the First Amendment
because it punished speech
based on the ideas
expressed.

Reno v. ACLU (1997)
The 1996 Communications
Decency Act was ruled
unconstitutional since it was
overly broad and vague in its
regulation of speech on the
Internet, and since it
attempted to regulate
indecent speech, which the
First Amendment protects.

United States v. American
Library Association (2003)
The federal government
could require public libraries
to use Internet-filtering
software to prevent viewing of
pornography by minors. The
burden placed on adult
patrons who had to request
the filters be disabled was
minimal.

Virginia v. Black (2003)
A blanket ban on cross-
burning was an
unconstitutional content-
based restriction on free
speech. States could ban
cross burning with intent to
intimidate, but the cross
burning act alone was not
enough evidence to infer
intent.





FREEDOM OF SPEECH:
CAMPAIGN FINANCE

Buckley v. Valeo (1976)
“Reasonable restrictions” on
individual, corporate and
group contributions to
candidates were allowed;
limits on campaign
expenditures were
unconstitutional since these
placed “substantial and direct
restrictions” on protected
political expression.
Colorado Republican Federal
Campaign Committee v. FEC
(1996)
The Court ruled that
campaign spending by
political parties on behalf of
congressional candidates
could not be limited as long
as the parties work
independently of the
candidates.

McConnell v. Federal
Election Commission (2003)
Limitations on “soft-money”
contributions and political
advertisements were
acceptable infringements of
free speech because of the
government’s interest in
preventing corruption or the
appearance of corruption in
elections.

FREEDOM OF SPEECH:
COMMERCIAL

Virginia Board of Pharmacy v.
Virginia Citizens Consumer
Council (1976)
A pharmacy had the First
Amendment right to advertise
prices.

Linmark v. Willingboro (1977)
A town prohibition on “For
Sale” and “Sold” signs was
unconstitutional. The ban was
unreasonable restriction on
the flow of commercial
information.

United States v. United Foods
(2001)
A law forcing cooperatives of
mushroom growers to pay
advertising fees was “contrary
to First Amendment
principles” as a form of
compelled speech.


FREEDOM OF THE PRESS

Rex v. Zenger (1735)
The colony of New York tried
publisher John Peter Zenger
for seditious libel against the
governor
. At that time, truth
was not a defense in a
libel case.
Zenger’s attorney
told the jury of their power
and duty to judge the law as
well as the facts, and the jury
acquitted Zenger. Though not
a Supreme Court case, this is
a landmark freedom of the
press case.

People v. Croswell (1804)
Harry Croswell was convicted
of libel for printing a story
critical of President Thomas
Jefferson in his newspaper.
Alexander Hamilton
represented Croswell on
appeal and argued that truth
should be a defense for libel.
Croswell’s conviction was
upheld, but the case led New
York to change its law to
permit truth as a defense.
Though not a Supreme Court
case, this is a landmark
freedom of the press case.

Near v. Minnesota (1931)
A state law allowing prior
restraint was unconstitutional.
This decision also extended
protection of press freedom
to the states through the
Fourteenth Amendment.

New York Times v. Sullivan
(1964)
The First Amendment
protected all statements
about public officials unless
the speaker lied with the
intent to defame.

Garrison v. Louisiana (1964)
A Louisiana law that punished
true statements made with
“actual malice” was
overturned. The Court ruled
that unless a newspaper
shows “reckless disregard for
the truth,” it is protected
under the First Amendment.

Curtis Publishing Co. v.
Butts and AP v. Walker
(1967)
A “public figure” who is
not a public official
may
recover damages for a
defamatory falsehood what
harms his or her reputation, if
the newspaper’s actions were
an “extreme departure” of the
standards of reporting.

New York Times v. United
States (1971)
A claimed threat to national
security was not justification
for prior restraint on
publication of classified
documents (the Pentagon
Papers) about the Vietnam
War.

Nebraska Press Association
v. Stuart (1976)
A judge’s order that the
media not publish or
broadcast statements by
police in a murder trial was an
unconstitutional prior
restraint. The gag order
violated the First Amendment
rights of the press and the
community.

Zacchini v. Scripps-Howard
Broadcasting (1977)
The Court ruled that the First
Amendment does not give a
television station to right to air
the entire act of a
performance without the
performer’s permission.

Hustler v. Falwell (1988)
The First Amendment
prohibits public figures from
recovering damages for
intentional infliction of
emotional harm unless the
publication contained a false
statement made with actual
malice.

Hazelwood School District v.
Kuhlmeier (1988)
Public school officials can
censor school-sponsored
newspapers, because the
newspapers are part of the
school curriculum rather than
a forum for public expression.

Top
FREEDOM OF
ASSEMBLY/ASSOCIATION

Dejonge v. Oregon (1937)
Federal protection of the right
of peaceful assembly for
lawful discussion was
extended to the states.

NAACP v. Alabama (1958)
An Alabama law requiring
associations to disclose their
membership lists was struck
down. This requirement would
suppress legal association
among the group’s members.

Edwards v. South Carolina
(1963)
The convictions of students
arrested for peaceful
demonstrations against
segregation were overturned
because the state could not
“make criminal the peaceful
expression of unpopular
views.”

Lloyd Corporation v. Tanner
(1972)
Shopping mall owners may
prohibit demonstrators from
assembling in their private
malls since the First
Amendment applies to public,
not private property.

Village of Skokie vs. National
Socialist Party (1978)
The National Socialist (Nazi)
Party could not be prohibited
from marching peacefully
because of the content of
their message.

Rotary International v. Rotary
Club of Duarte (1987)
California state law requiring
Rotary Clubs to admit women
was constitutional. Because
women members would not
prevent the group from
accomplishing its goals, the
Court held that the state’s
compelling interest in ending
sexual discrimination
outweighed the infringement
on the group’s right of
association.

Madsen v. Women’s Health
Clinic (1994)
Some restrictions on
protesters at a Florida
abortion clinic, including limits
on noise amplification and a
required buffer zone, did not
violate the First Amendment.
The restrictions that “burden
[ed] no more speech than
necessary” to protect access
to the clinic and ensure
orderly traffic flow on the
street were upheld. The
restrictions that burdened
“more speech than
necessary” and were struck
down.

Hurley v. Irish American GLIB
Association (1995)
Forcing a privately-organized
parade to include homosexual
and bisexual groups would be
a form of coerced speech and
violated the organizers’ First
Amendment rights.

Schenck v. Pro-Choice
Network of Western New York
(1997)
”Fixed buffers” around
abortion clinics were
constitutional since they
protected the government’s
interest in protecting private
property and preventing
illegal activity. A fifteen-foot
“floating buffer” around
patients leaving or entering
an abortion clinic was struck
down as an infringement of
the protestors’ First
Amendment rights.

Boy Scouts of America v.
Dale (2000)
Forcing the Boy Scouts to
admit a gay scout leader
would violate the private
organization’s rights to
freedom of association and
expressive association.


FREEDOM OF PETITION

NAACP v. Button (1963)
States could not stop the
NAACP from soliciting people
to serve as litigants in federal
court cases challenging
segregation.

Meyer v. Grant (1988)
States could not bar groups
from hiring individuals who
circulate petitions in support
of a ballot measure.

Buckley v. American
Constitutional Law
Foundation (1999)
The Court ruled that states
could not require petition
circulators to be registered
voters, wear name badges, or
disclose information about
themselves and their salaries.
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HOME
Finkel v. Facebook
Posted March 3rd, 2009 by CMLP Staff

Threat Type: Lawsuit         Date:  02/16/2009
Status: Concluded         Location:  New York
Disposition: Dismissed (total)         Verdict/Settlement Amount: n/a
Legal Claims: Defamation; Negligence
Teenager Denise Finkel sued four of her former high school classmates, their parents, and
Facebook after the students created a private Facebook group called "90 Cents Short of a
Dollar," which allegedly contained false and defamatory statements about her.  The complaint
alleges...  read full description
Parties
Party Issuing Legal Threat:        Party Receiving Legal Threat:
Denise E. Finkel        Facebook, Inc.; Michael Dauber; Jeffrey Schwartz; Melinda Danowitz;
Leah Herz; Richard Dauber; Amy Schwartz; Elliott Schwartz; Martin Danowitz; Bari Danowitz;
Alan Herz; Ellen Herz
Type of Party:        Type of Party:
Individual        Individual; Large Organization
Location of Party:        Location of Party:
New York        New York
Legal Counsel:        Legal Counsel:
Mark Altschul - Altschul & Altschul        Lisa T. Simpson and Aaron G.R. Rubin - Orrick,
Herrington & Sutcliffe LLP (for Facebook); Lina C. Rossillo - Morris Duffy Alonso & Faley (for
Elliot, Jeffrey, and Amy Schwartz)
Description

Teenager Denise Finkel sued four of her former high school classmates, their parents, and
Facebook after the students created a private Facebook group called "90 Cents Short of a
Dollar," which allegedly contained false and defamatory statements about her.

The complaint alleges that statements appearing on the private Facebook group asserted or
implied that she "was a woman of dubious morals, dubious sexual character, having engaged
in bestiality, an 'IV drug user' as well as having contracted the H.I.V. virus and AIDS." Cmplt. ¶
23.  The postings are attached as an exhibit to the complaint.

The complaint alleges that Facebook should be held liable for publishing the defamatory
matter, explaining that it "should have known that such statements were false and/or have
taken steps to verify the genuineness" of the statements. Id. ¶ 28.  

The complaint also alleges that the students' parents are liable for negligently failing to
supervise their children.

Update:

9/15/09 - Court granted Facebook's motion to dismiss, finding that Facebook is immune from
liability under Section 230 of the CDA.  Court rejects plaintiff's argument that Facebook's
Terms of Use which grant it an "ownership interest" in the allegedy defamatory content makes
Section 230 inapplicable.

7/22/10 - After removal to state court, state judge dismissed the remaining claims, writing
that, "Taken together, the statements can only be read as puerile attempts by adolescents to
outdo each other" (slip op. at 7).
Hecimovich v. Encinal School Parent Teacher Organization
(2012) , Cal.App.4th
[No. A130852. First Dist., Div. Two. Feb. 9, 2012.]

LAWRENCE HECIMOVICH,
Plaintiff and Respondent,

v.

ENCINAL SCHOOL PARENT TEACHER ORGANIZATION et al.,
Defendants and Appellants.

(Superior Court of San Mateo County, No. CIV498362, Gerald J. Buchwald, Judge.)
(Opinion by Richman, J., with Kline, P.J., and Haerle, J., concurring.)

COUNSEL
Kirtland & Packard, Robert A. Muhlbach, Robert K. Friedl, and Jennifer Boldi for Defendants
and Appellants.
Lawrence Hecimovich, in pro. per. for Plaintiff and Respondent.

OPINION
RICHMAN, J.-

A recent Google search for "youth sports" showed 379,000,000 results. "Safety in youth
sports," 66,800,000. "Problem parents in youth sports," 21,600,000. And "problem coaches in
youth sports," 108,000,000. Subjects of tremendous interest.

Plaintiff Lawrence Hecimovich, by profession an attorney, was in 2008-2009 the volunteer
basketball coach of a fourth grade basketball team in the after school program in Menlo Park.
A discipline problem arose with one of the players on his team, and plaintiff's attempts to
resolve the issue with the boy's parents only exacerbated the situation, to the point, plaintiff
claimed, that the parents were "rallying team parents to remove" him. Plaintiff then involved
the volunteer league commissioner, who involved other league officials. This led to an
extensive review of the matter--and numerous emails--the upshot of which was that plaintiff
was told he would not be allowed to coach the following year and a suggestion that, when he
return, it be to coach older children. Plaintiff's response was this lawsuit.

Representing himself, plaintiff filed a complaint against four defendants, the parent teacher
organization and three volunteers involved in running the after school program, a complaint
that purported to allege eight causes of action. Defendants filed an anti-SLAPP motion,
asserting that the lawsuit dealt with an issue of public interest and that plaintiff could not
demonstrate a likelihood of prevailing on the merits. The trial court observed that the
"gravamen" of plaintiff's complaint was defamation, and went on to hold that defamation
cannot be protected activity within the anti-SLAPP analysis. The court thus denied the motion
under the first step of the analysis, and did not reach step two.

Defendants appeal, and we review the matter de novo, concluding first that
defamation can be protected activity and that plaintiff's lawsuit arose out of an issue
of public interest.
And we go on--at plaintiff's express invitation--to decide the second step,
and hold that plaintiff has failed to demonstrate a likelihood of prevailing on the merits. We
thus reverse, with instructions to enter an order granting the motion to strike, and to hold a
hearing to determine the attorney fees to which defendants are entitled for their success in
having the lawsuit stricken.


INTRODUCTION
We begin with a general description of what plaintiff's lawsuit is about, as alleged in the
"Summary of Claims" in paragraph six of his verified complaint:

"6. Hecimovich was the volunteer basketball coach for an Encinal School fourth grade team in
the City of Menlo Park Community Services AfterSchool Basketball Program during the
2008-2009 school year. Throughout the early part of the year, a player on the team engaged
in behavior that went beyond disruption to posing a serious risk to his own safety and the
safety of other players. That conduct included but was not limited to kicking and throwing
basketballs at the gym lights, clock and fire alarm in an effort to break them; throwing or
kicking balls at other players or other players' basketballs to disrupt their shooting or
dribbling; and disappearing without notice during practices, including the final incident lasting
half an hour. Hecimovich brought these issues to the attention of the player's parents
numerous times and was at first ignored, then met with extreme anger and hostility,
allegations that Hecimovich was discriminating against the player, and the threat that the
parent had rallied and would continue to rally team parents to remove Hecimovich. When
Hecimovich informed {Slip Opn. Page 3} Encinal Basketball Coordinator Julie Roth of these
developments, Roth refused to allow Hecimovich to take any action to address the situation,
despite the fact that it clearly would not improve, lacking parent support. Roth . . . insisted,
contrary to written policy, that a coach could not reduce a p[l]ayer's minutes due to
misconduct. When Hecimovich informed Roth that the risk to player safety, the disruption to
practices and the impact on team cohesiveness was unacceptable and would not be allowed
under the rules of [American Youth Soccer Organization] or other youth organizations, Roth
accused him of 'unnecessarily escalating the situation' and threatened various punishments,
including removing him as a coach. The following year, Roth, together with her successor,
Leslie Burke, and PTO President Kelly Perri, found Hecimovich unfit to coach and
permanently barred Hecimovich from participating in the Encinal League."

As will be seen, defendants take issue with certain of the specific accusations in plaintiff's
summary, and also with the description of what was ultimately said to plaintiff. But defendants
take no issue with the background that generated the communications and the dispute here:
the conduct of a kid on a fourth grade basketball team, his parents' and his coach's reactions
to it, and the ultimate resolution of the situation.


BACKGROUND
Plaintiff's Complaint

On August 27, 2010, representing himself, plaintiff filed a verified complaint for damages,
including punitive damages. It named four defendants, identified by plaintiff as follows: Encinal
School Parent Teacher Organization (PTO), a non-profit organization; Kelly Perri, PTO
President during the 2009-2010 school year; Julie Roth, PTO Basketball Commissioner
during the 2008-2009 school year; and Leslie Burke, Basketball Commissioner during the
2009-2010 school year and currently (when referred to collectively, defendants). The
complaint alleged eight causes of action, each against all defendants, styled by plaintiff as
follows: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3)
retaliation in violation of public policy; (4) libel and slander; (5) negligence; (6) fraud; (7)
intentional infliction of emotional distress; and (8) negligent infliction of emotional distress.
{Slip Opn. Page 4}

The complaint was 20-pages long, with 88 paragraphs. The first five paragraphs identified the
parties; paragraph 6 was plaintiff's summary of claims quoted above; paragraphs 7 through
45 were plaintiff's "factual allegations"; and the remaining paragraphs purported to allege the
essential elements of the eight causes of action identified above. Significantly, all 39 "factual
allegations" were incorporated into each of the eight causes of action, perhaps most
significantly the final factual allegation, paragraph 45: "Hecimovich, who has coached soccer
(along with basketball and baseball) each of the last five years and intended to coach
throughout his sons' adolescence, has not coached again based on the defamation and other
unlawful conduct he experienced from defendants, and will not be able to coach until
defendants acknowledge their deceit and clear his reputation."

Interestingly, at no point--not in paragraph 45, not in the cause of action for "libel and
slander"--did plaintiff even attempt to allege what he claimed to be the defamatory
communication(s). fn. 1

The Motion to Strike

On October 13, 2010, defendants filed a special motion to strike pursuant to Code of Civil
Procedure section 425.16. fn. 2 The motion argued that: (1) the conduct alleged in plaintiff's
complaint was "in connection with a public issue or an issue of public interest," as it involved
communications between a parent-teacher organization and parents concerning plaintiff's
coaching of young children; and (2) plaintiff would not be able to show a likelihood of
prevailing on the merits. {Slip Opn. Page 5}

The motion was supported by declarations of the three individual defendants, Perri, Roth, and
Burke, each of whom testified to their involvement with plaintiff and/or the brouhaha that
ensued. As developed in more detail below, this testimony included problems with plaintiff and
his coaching style; the welfare of the young players; and what Perri, for example, described
as her conclusion: "[B]ased on my responsibilities and authority as president of the Encinal
School Parent Teacher Organization, that it would be prudent and appropriate to advise
Coach Hecimovich that he would not be able to coach in the program for at least one year. I
simply did not believe that Coach Hecimovich [sic] coaching style, based on my investigation,
was appropriate for young grammar school children. I so advised Coach Hecimovich and
indicated that after one year, I would consider allowing him to, once again, coach in the
program." The three declarations also testified that all communications in which the
declarants participated regarding plaintiff and his coaching were made without malice and to
"interested persons."

On November 1, 2010, plaintiff filed his opposition to the motion, consisting of a 14-page
memorandum of points and authorities and his 16-paragraph declaration. He filed no
declarations from any third persons. Plaintiff's declaration had attached nine exhibits which,
according to him, were copies of the following: the basketball league policies Roth distributed
to coaches; four emails from plaintiff, one to the parents of the young player involved, one to
all team parents, one to Perri, and one to Burke; two emails from Burke, one to plaintiff and
one to Perri; and a grouping of several emails from Perri, including one sent to all parents.

On November 9, 2010, defendants filed their reply. Along with it, they filed objections to
plaintiff's declaration, objecting to portions of his declaration identified by page and line,
generally on the grounds of hearsay and lack of foundation.

The Demurrer

Defendants had also filed a demurrer, which was scheduled to be heard on November 29, the
same day as the motion. {Slip Opn. Page 6}

The Hearing on the Motion

The court had issued a tentative ruling on the motion, apparently denying it. fn. 3 Defendants
contested it, and the result was a relatively brief argument, which began with the court noting
what its "thinking was here," which was this: "[Its] view was that there were some allegations
that suggested that claim here has to do with some false statements that were made about . .
. the plaintiff's performance and that that was why he wasn't able to coach anymore. [¶] . . . [¶]
And so, even though it isn't pled as a defamation claim it, you know that's what the allegations
sound in if I can use an old expression that we used to have."

Brief argument followed, with counsel for defendants citing authority for their position, after
which the court turned to plaintiff to see what he "has to say here." After addressing the
primary case relied on by defendants, plaintiff went on as follows:

"Secondly, the notion that anything somehow involves children or somehow involves a school
raises an issue of free speech on a matter of critical public importance that would completely
open up every case to a SLAPP motion. There would no longer be any lawsuits involving
education or children or government or anything else in that whole domain.

"Certainly, that is not the law and I think in the opposition I have cited a host of cases that it's
defendants' burden of showing that the gravamen of my claims which are, I think your Honor's
comment about it being sounding [in] defamation comprises an attack on specific efforts to
engage in free speech not significant public issues. And that is the case of Wang v. Wal-Mart,
153 Cal.App.4th 790. Clearly that's not what is at issue here.

"What is at issue here is a very internal policy matter. There is a written policy that says that a
coach could discipline children who engage in misconduct. The commissioner, upon being
told a coach wants to discipline a child is engaged in misconduct like limiting playing time,
says, 'No, that is not the policy. That policy doesn't apply to us.' " {Slip Opn. Page 7}

Counsel for defendants responded, principally focusing on the communications, all made in
the context of decisions that "impacted a number of children and their parents." Plaintiff briefly
responded, observing that if the court were to look, for example, at Roth's declaration, "this
entirely relates to a complaint raised by the coach, that being me, about a need to implement
discipline based upon student misconduct and Ms. Roth disagreed with that approach."

The court then said it was prepared to rule, and went on as follows:

"My view on it really doesn't rest so much on [the extent of the communications] and I am
aware of this, of the language in the statute that talks about activity that is done in connection
with a matter of public interest, but if what you say is true then would it mean that we could
never have a defamation lawsuit against a public figure in California and the standards of New
York Times v. Sullivan being invoked and the problem I have with the . . . motion is that it's
clear that the complaint sets out alleged defamation of character. And even if that is activity
that is connected with freedom of speech, that kind of speech has never been protected by
the First Amendment. And so, and that has been the case since at least the 1920's. The
United States Supreme Court has held to that view. The California Supreme Court is held to
that view and it seems to me that given what the claim here actually is, leaving aside some of
the problems with the pleadings that I have noted. If you look at the essence of the claim, it's
that there were false statements being publicly made that were published and this is a
remedy, this special motion to strike is a remedy that was designed and is intended to protect
protected speech not unprotected speech."

Counsel for defendants disagreed, to no avail, and the remainder of the brief hearing dealt
with the court's oral rulings on defendants' objections to evidence, which apparently were all
"overruled" in the tentative ruling, but with no grounds given.

At the conclusion of the hearing, the court confirmed the basis of its ruling: "Because the
basis of the claim is purported defamation that it's not a claim as to which the special motion
to strike applies because defamation by its definition is something that for years has been
held not to be protected by the first amendment and in order for you to {Slip Opn. Page 8}
make a threshold showing you have got to show that there is a connection to some protected
First Amendment activity and that showing isn't made here."

On January 7, 2011, the court filed its two-page order, the substance of which provided in its
entirety as follows:

"1. The Motion to Strike by Defendants pursuant to C.C.P. § 425.16 is denied. The Court
finds that Defendants failed to meet their burden of showing that Plaintiff [sic] claims arises
[sic] from Defendants' exercise of free speech or petition rights as defined by C.C.P. §
425.16. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) A fair
reading of the Complaint is that the gravamen of Plaintiff's claim is a purported defamation of
character, something that, if true, is not protected by the First Amendment,

"2. The Defendants [sic] objections to the Declaration of Lawrence Hecimovich are overruled.
Specific grounds for the Court overruling these objections was set forth, on the record, during
the hearing on the subject motion.

"3. Plaintiff's request for judicial notice of certain documents is denied."

On January 7, 2011, defendants filed their notice of appeal.

The Demurrer and the Amended Complaint

As indicated above, defendants had also filed a demurrer. As to it, the court sustained the
demurrer to all eight causes of action in the complaint, without leave to amend as to the third
cause of action, and with leave to amend as to the other seven.

On December 8, 2010, and before defendants filed their notice of appeal, plaintiff filed his
verified first amended complaint for damages.

Plaintiff's Motion to Augment

In his brief to us, plaintiff chastises defendants for "improperly omit[ting] from the record
plaintiff's first amended complaint filed December 8, 2010, one month before the appeal." And
on July 6, 2011, plaintiff filed a motion to augment the record on appeal, to include (1) the first
amended complaint, and (2) a copy of a January 2011 article from an online newspaper, The
Almanac Online, entitled "Encinal Coach's Lawsuit Ruling Appealed," along with online
comments about the article. Defendants opposed the {Slip Opn. Page 9} motion, and on July
14 we ordered that we would take the motion under submission and decide it with the merits
of the appeal.

On September 9, 2011, plaintiff filed what he called a "Supplemental Memorandum and Post-
Motion Evidence in Support of His Motion to Augment the Record." This sought to augment
the record to "reflect [plaintiff's] efforts to obtain discovery" concerning the "authorship of the
defamatory January 2011 online articles," which discovery was disallowed by the trial court.

We now deny the motion to augment.

The reason plaintiff sought to add the first amended complaint was, in his words, for "the sole
purpose of adjudicating the second prong of the anti-SLAPP test--assessing [plaintiff's]
likelihood of success on the merits. [Plaintiff] cited to Nguyen-Lam v. Cao (2009) 171
Cal.App.4th 858, 870-871. Nguyen-Lam is directly on point." Nguyen-Lam is not on point.
Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604 is.

Roberts was, as here, an appeal from a denial of a SLAPP motion. And plaintiff Robert's first
contention was that the appeal was "moot, frivolous, and should be dismissed because prior
to the . . . filing of the notice of appeal she filed a second amended complaint, which is now
the operative pleading." (Roberts v. Los Angeles County Bar Assn., supra,105 Cal.App.4th at
p. 612 (Roberts).) Rejecting that claim, the court held that "An implied stay in the proceedings
where the plaintiff files an amended complaint prior to the defendant's appeal of the denial of
a SLAPP motion to strike is necessary so that a plaintiff cannot deprive a defendant of the
right to the appellate review granted by the Legislature so that the appellate court can
determine if the defendant had made a prima facie showing. [¶] There would be little benefit in
a right to appeal if the plaintiff could get around appellate review by filing an amended
pleading. Nor would a competitive rush to the courthouse fulfill the legislative purpose of a
quick and inexpensive method of unmasking and dismissing SLAPP suits." (Id. at p. 613;
accord, Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 [appeal from grant of
SLAPP motion].) {Slip Opn. Page 10}

Nguyen-Lam v. Cao, the case relied upon by plaintiff, is not to the contrary. There, the trial
court had entered an unusual order, described by the Court of Appeal as follows: "The trial
court couched its ruling as an order granting defendant's motion to strike, but with leave for
plaintiff to amend her complaint to cure any deficiency concerning actual malice. . . . But
authorizing an amendment under these circumstances is tantamount to denying the strike
motion, and we therefore reach the propriety of the ruling based on defendant's challenge."
(Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 869-870.) The court went on to affirm the
denial of the SLAPP motion, pointedly noting that it did so because the evidence showing that
plaintiff could prevail on the merits was before the trial court at the time of the motion: "True, a
plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an amended
complaint (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122
Cal.App.4th 1049) but where, as here, the evidence prompting amendment is found in the
declarations already submitted for the hearing, there is no risk the purpose of the strike
procedure will be thwarted with delay, distraction, or increased costs. (Cf. ARP Pharmacy
Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 138 Cal.App.4th 1307, 1323 [plaintiff
cannot amend pleading to avoid pending anti-SLAPP motion]); Navellier v. Sletten (2003) 106
Cal.App.4th 763, 772 [plaintiff cannot use " 'eleventh-hour amendment' " to plead around
anti-SLAPP motion].)" (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 871-872.) In short,
the court concluded, "the trial court did not err in permitting plaintiff to amend her complaint to
plead actual malice in conformity with the proof presented at the hearing on the strike
motion." (Id. at p. 873.)

This, of course, is not the setting here, and the first amended complaint has no place before
us, as plaintiff at one point apparently concedes, observing that "the original complaint
remains the operative pleading for purposes of assessing whether [defendants] engaged in
protected activity subject to the SLAPP statute."

As to the January 2011 online newspaper article and the numerous comments that followed
it--all published after the appeal was filed--they have nothing to do with the {Slip Opn. Page
11} two issues involved in the SLAPP analysis. fn. 4 Slauson Partnership v. Ochoa (2003)
112 Cal.App.4th 1005, cited by plaintiff in his reply brief for the proposition that "nothing in the
statute or case law suggests that the factual analysis for ruling on the motion must be frozen
in time on the date the complaint is filed," is easily distinguishable. Slauson held that a trial
court ruling on a SLAPP motion--there, in a case involving an injunction--could rely on
postcomplaint evidence in ruling on the motion. (Id. at p. 1021.) Not postappeal evidence.

In sum, we analyze the matter based on plaintiff's complaint and the papers filed below in
connection with the SLAPP motion, an analysis to which we now turn.


DISCUSSION
SLAPP Law and the Standard of Review

Subdivision (b)(1) of section 425.16 provides that "[a] cause of action against a person
arising from any act of that person in furtherance of the person's right of petition or free
speech under the United States or California Constitution in connection with a public issue
shall be subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim." Subdivision (e)
elaborates the four types of acts within the ambit of a SLAPP, including, as pertinent here,
"(4) any other conduct in furtherance of the exercise of the constitutional right of petition or
the constitutional right of free speech in connection with a public issue or an issue of public
interest."

A two-step process is used for determining whether an action is a SLAPP. First, the court
decides whether the defendant has made a threshold showing that the challenged cause of
action is one arising from protected activity, that is, by demonstrating that the facts underlying
the plaintiff's complaint fits one of the categories spelled out in section 425.16, subdivision
(e). If the court finds that such a showing has been made, it {Slip Opn. Page 12} must then
determine the second step, whether the plaintiff has demonstrated a probability of prevailing
on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)

"The Legislature enacted section 425.16 to prevent and deter 'lawsuits [referred to as
SLAPP's] brought primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances." (§ 425.16, subd. (a).) Because these
meritless lawsuits seek to deplete 'the defendant's energy' and drain 'his or her resources'
[citation], the Legislature sought ' "to prevent SLAPPs by ending them early and without great
cost to the SLAPP target" ' [citation]. Section 425.16 therefore establishes a procedure where
the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at
an early stage of the litigation." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th
180, 192.)

Finally, and as subdivision (a) of section 425.16 expressly mandates, the section "shall be
construed broadly."

With these principles in mind, we turn to a review of the issues before us, a review that is de
novo. (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988 (Grewal).)

Defamation Suits Can Be Within SLAPP

As noted, the first step in the SLAPP analysis is to determine whether the lawsuit is within one
of the four descriptions of protected activity in subdivision (e) of section 425.16. The trial
court held it was not, because it sounded in defamation which, the court held, is not--and
apparently can never be--protected activity. Such holding was wrong.

Numerous cases have made the SLAPP analysis in defamation cases, as manifest by the five
pages of cases discussed in Notes 29 through 35 of the annotations to section 425.16 in
West's Annotated Codes. (See Notes of Decisions, 14B West's Ann. Code Civ. Proc. (2004),
foll. § 425.16, pp. 413-418.) Indeed, as our colleagues in Division One confirmed in the
course of a lengthy discussion of the history and purpose of the SLAPP procedure,
defamation is the very first of the " 'favored causes of action in SLAPP suits.' " (Wilbanks v.
Wolk (2004) 121 Cal.App.4th 883, 890; accord, {Slip Opn. Page 13} Gallimore v. State Farm
Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1400, fn. 9 [" 'The favored causes of
action in SLAPP suits are defamation . . . .' "].)

As another Court of Appeal observed, " 'defamation suits are a prime target of SLAPP
motions. [¶] . . . The Legislature did not intend that in order to invoke the special motion to
strike the defendant must first establish her actions are constitutionally protected under the
First Amendment as a matter of law. If this were the case then the inquiry as to whether the
plaintiff has established a probability of success would be superfluous." (Scott v. Metabolife
Internat., Inc. (2004) 115 Cal.App.4th 404, 419-420, citing Fox Searchlight Pictures, Inc. v.
Paladino (2001) 89 Cal.App.4th 294, 305.) In short, the basis on which the trial court denied
the motion was wrong.

But that does not end the inquiry, as we must determine on our de novo review whether
plaintiff's lawsuit involves an "issue of public interest."

Plaintiff's Lawsuit Involves an Issue of Public Interest

Like the SLAPP statute itself, the question whether something is an issue of public interest
must be " ' "construed broadly." ' " (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23; Rivera v.
First DataBank, Inc. (2010) 187 Cal.App.4th 709, 716 (Rivera).) An " 'issue of public interest' "
is " 'any issue in which the public is interested.' " (Id. at p. 716, quoting Nygard, Inc. v.
Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.) A matter of " ' "public interest should be
something of concern to a substantial number of people. [Citation.] . . . [T]here should be
some degree of closeness between the challenged statements and the asserted public
interest [citation] . . . . [T]he focus of the speaker's conduct should be the public interest . . . ."
' [Citation.] Nevertheless, it may encompass activity between private people." (Rivera, supra,
187 Cal.App.4th at p. 716.)

We look for "the principal thrust or gravamen of plaintiff's cause of action." (Martinez v.
Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) We " 'do not evaluate the first
prong of the anti-SLAPP test solely through the lens of a plaintiff's cause of action.' " (Stewart
v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679.) The "critical consideration" is what
the cause of action is "based on." (Navellier, supra, 29 Cal.4th at p. 89.) {Slip Opn. Page 14}

Applying those principles here leads easily to the conclusion that the communications and
conduct about which plaintiff complains were in connection with an issue of public interest.

We begin with the "factual allegations" in plaintiff's complaint, the first of which refer to Roth,
and her involvement with plaintiff in connection with a problem he had with his young player
and the player's parents. These allegations confirm that the issue included the parents telling
Roth that in their opinion plaintiff posed a danger to their child's physical safety. In fact,
plaintiff himself stated that he "could not coach a player whose parents considered [plaintiff]
unsafe."

The next factual assertions, those concerning Burke, involve statements attributed to her in
her capacity as the PTO Basketball Commissioner, all concerning plaintiff's problems with the
player and his parents. These include a recitation of alleged conversations between Burke
and plaintiff's assistant coach Picciotto, a communication from Burke to Perri to the effect that
respondent was "bullying two moms," and the decision to "remove" him as a coach.

The next allegations are about Perri, again of conduct and statements attributed to her in an
official capacity as PTO President. And these allegations conclude with the statement, "Perri
determined that Hecimovich was unfit to coach and informed Hecimovich's team parents of
that conclusion." In short, plaintiff's own complaint concedes that the communications in issue
here concern the well-being of young children in an after school sports program, as
discussed between and among members of the PTO, parents of the young team members,
and league officials.

As noted above, the declarations of individual defendants Roth, Perri, and Burke confirm in
great detail that the issue with the player and plaintiff's fitness to coach young players was the
basis of the dispute. And plaintiff's own declaration makes the point graphically, with 15 of his
16 paragraphs describing the dispute in detail. These paragraphs include plaintiff's sworn
testimony that the player's parents were alleging that plaintiff was "discriminating against the
players"; that assistant coach Picciotto had been told by Burke that a player's father had "filed
a formal written complaint insisting that {Slip Opn. Page 15} [plaintiff] not be allowed to coach
again, and that Roth had reported that [plaintiff] had used improper disciplinary tactics
against the player"; and that Perri contacted parents of the players to "inform them that the
PTO had banned [plaintiff] from coaching (head or assistant coach) due to what was
considered unacceptable conduct coaching their sons."

This is an issue of public interest.

Defendants relied below, and rely here, on Terry v. Davis Community Church (2005) 131
Cal.App.4th 1534 (Terry), where the essence of plaintiffs' complaint was that they were falsely
accused of having an inappropriate sexual relationship with a minor female in their work as
church youth group leaders. (Id. at p. 1538.) The evidence showed that parents had
complained about the plaintiffs' dealings with the minor, which prompted a church
investigation, the result of which was a confidential report of the church describing an
inappropriate relationship with the minor. (Id. at pp. 1539-1542.) The report was then
discussed among interested church members, first in a February 19, 2004 closed meeting of
church officials and then at "two meetings on February 22, 2004, with parents of youth group
members. The Church had received many inquiries from parents and concluded they had a
right to know about the investigation. Defendants distributed copies of the report at the
meetings and took care to collect all copies as the meetings ended. About 100 people saw
the report." (Id. at p. 1543.)

Plaintiffs sued the church, the pastor, and church leaders for libel, slander, and intentional
and negligent infliction of emotional distress, and sought injunctive relief after the distribution
of the report at the meetings. Defendants responded with a SLAPP motion, which the trial
court granted. The Court of Appeal affirmed, finding that "the communications clearly involved
issues of public interest, because they involved the societal interest in protecting a substantial
number of children from predators." (Terry, supra, 131 Cal.App.4th at pp. 1538-1539, 1547.)
Doing so, the court first rejected the argument that the case involved only matters of private
interest: "Plaintiffs characterize the issue in this case as a private relationship between
George Terry and the girl. Not so. The issue as to whether or not an adult who interacts with
minors in a church youth program has engaged in an inappropriate relationship with any of
the minors is clearly a {Slip Opn. Page 16} matter of public interest. The public interest is
society's interest in protecting minors from predators, particularly in places such as church
programs that are supposed to be safe. It need not be proved that a particular adult is in
actuality a sexual predator in order for the matter to be a legitimate subject of discussion." (Id.
at p. 1547.)

And the court went on: "Here, the broad topic of the report and the meetings was the
protection of children in church youth programs, which is an issue of public interest. This is
not to say that George Terry in fact molested the girl. Rather, George Terry's actions in
engaging in a secretive and inappropriate relationship with the girl gave the Church and
parents of youth group members cause for concern and opened for discussion the topics of
whether other children were affected and how to prevent such inappropriate relationships."
(Terry, supra, 131 Cal.App.4th at p. 1548.)

Plaintiff says nothing in any attempt to distinguish the holding or reasoning or Terry,
contenting himself with criticism of defendants for their reliance on the case and taking
umbrage at being equated with a child molester. fn. 5 That, of course, is not the point. The
point is that, like the safety of children issue in Terry, the safety of children in sports is also an
issue of public interest--which issue, as shown by plaintiff's own pleading and declaration, was
at the heart of his dispute with defendants.

Indeed, it would appear that plaintiff essentially agrees that the suitability of his coaching style
was a matter of public interest among the parents. As plaintiff testified, he himself urged the
team parents to join in an investigation of his suitability to coach the {Slip Opn. Page 17}
young players because it involved "the well being of our kids." In his words: "Please, if you
would, take the time to answer [Perri's] questions fully and truthfully, and don't hold anything
back on the grounds that it might be hurtful to me. I think that if the PTO wants to ensure the
well being of our kids (at least in this one, highly-selective occasion) everyone should be
forthcoming."

As noted, plaintiff has requested that we augment the record to include, among other things,
a January 2011 article in The Almanac Online about the lawsuit and numerous follow up
comments about it. While we decline the request to augment, we do note that the scope and
breadth of the comments, not to mention the article itself, show just how much the public was
interested in the issue.

In sum, we conclude that safety in youth sports, not to mention problem coaches/problem
parents in youth sports, is another issue of public interest within the SLAPP law. (See, also,
Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 236-240 [domestic
violence]; M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623 [molestation in youth sports];
Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39 [dietary supplement]; Wilbanks v.
Wolk, supra, 121 Cal.App.4th at p. 898-899 [quality of seller's products]; Terry, supra, 131
Cal.App.4th at p. 1547 [protection of children from predators]; Gilbert v. Sykes, supra, 147
Cal.App.4th 13 [plastic surgery]; and McGarry v. University of San Diego (2007) 154
Cal.App.4th 97 [firing of college football coach].)

Plaintiff Has Failed to Demonstrate a Likelihood of Prevailing on the Merits

The second step in the SLAPP analysis is to determine whether plaintiff has shown a
probability of prevailing on the claim. Here, because the trial court found, however
erroneously, that plaintiff's lawsuit was not within the SLAPP statute, it did not reach step two.
Nevertheless, we can decide the issue (see Roberts, supra, 105 Cal.App.4th at pp. 615-616)
and, in fact, plaintiff "asks [us] to address the likelihood of success on the merits prong on the
anti-SLAPP test." We thus decide step two. And conclude that plaintiff has failed to meet his
burden. {Slip Opn. Page 18}

Introduction to Analysis

We confirmed the applicable law in Grewal, supra, 191 Cal.App.4th at p. 989: "We decide the
second step of the anti-SLAPP analysis on consideration of 'the pleadings and supporting
and opposing affidavits stating the facts upon which the liability or defense is based.' (§
425.16, subd. (b).) Looking at those affidavits, '[w]e do not weigh credibility, nor do we
evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the
plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's
submission as a matter of law.' (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151
Cal.App.4th 688, 699-700. [¶] That is the setting in which we determine whether plaintiff has
met the required showing, a showing that is 'not high.' (Overstock.com, Inc. v. Gradient
Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff
needs to show only a 'minimum level of legal sufficiency and triability.' (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 438 fn. 5.) In the words of other courts, plaintiff needs to show only a
case of 'minimal merit.' (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP
(2005) 133 Cal.App.4th 658, 675, quoting Navellier v. Sletten[, supra,] 29 Cal.4th 82, 95, fn.
11.)"

While plaintiff's burden may not be "high," he must demonstrate that his claim is legally
sufficient. (Navallier v. Sletten, supra, 29 Cal.4th at p. 93.) And he must show that it is
supported by a sufficient prima facie showing, one made with "competent and admissible
evidence." (Tuchscher Development Enterprisers, Inc. v. San Diego Unified Port Dist. (2003)
106 Cal.App.4th 1219, 1236; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.) Plaintiff's
demonstration does not measure up.

As noted, the trial court thought the "gravamen" of plaintiff's lawsuit was defamation. Plaintiff
seemingly did not disagree below, as reflected in his argument, where he apparently adopted
the court's analysis. Here, by contrast, plaintiff vigorously disagrees, and asserts that
defendants' claim that defamation is the gravamen of his suit is "manifestly false, rendering
their failure to address [plaintiff's] other causes of action fatal to their appeal." And, plaintiff
goes on, "[T]he Complaint makes clear that {Slip Opn. Page 19} [plaintiff's] principal
grievance relates to the baseless decision to bar him from the Encinal and Hillview programs
based on the erroneous insistence that [plaintiff] had improperly benched a player. In fact,
[plaintiff] repeatedly offered to forgive the loss of a season coaching his sons' teams,
withdraw his grievances and forego legal action--first, not to file the complaint, then, not to
serve it, then, to dismiss the complaint and forego damages--if [defendants] simply allowed
him to return to coaching in year two, then, in year three. [Defendants] rejected those
overtures. . . ." Two brief paragraphs follow, the second of which says this: "To pretend that
the Complaint can be reduced to a single theory of injury, and that the gravamen of
[plaintiff's] claims sounds in defamation, is a mere fiction. The court below accepted that
characterization so as to expeditiously deny the motion, since the defamation allegations
clearly fall outside the SLAPP statute. However, had [defendants] not failed miserably in their
attempt to strike the defamation allegations, they would have had to address the remaining
claims."

Despite the position urged in his brief, plaintiff did not meaningfully address any of the other
claims. Nor, for that matter, did defendants. We thus requested supplemental briefing on the
issue, and with it proceed to analyze the second step in the SLAPP analysis, beginning with
the claim which plaintiff labels "libel and slander."

The Defamation Claim

As quoted above, paragraph 45 of plaintiff's complaint, incorporated by reference into all
other causes of action, states: "Hecimovich, who has coached soccer (along with basketball
and baseball) each of the last five years and intended to coach throughout his sons'
adolescence, has not coached again based on the defamation and other unlawful conduct he
experienced from defendants, and will not be able to coach until defendants acknowledge
their deceit and clear his reputation."

Civil Code section 44 provides that defamation can be of two types, libel or slander. Libel is
defined in Civil Code section 45, slander in section 46. fn. 6 To prevail on a {Slip Opn. Page
20} claim for defamation, plaintiff must show four elements: that defendants published the
statements; that the statements were about plaintiff; that they were false; and that defendants
failed to use reasonable care to determine the truth or falsity. (CACI No. 1704.)

We begin by noting that we are at a loss to discern just what defamatory communication(s)
plaintiff is complaining about. At no point in his briefing does he specifically identify any
particular writing or utterance; and as will be seen, he has provided no evidence
demonstrating a prima facie case of defamation--indeed, he did not even plead one. (See fn.
1 above.)

Plaintiff's entire pleading of the alleged "libel and slander" is this: "PTO, Roth, Burke and Perri
have knowingly made false statements, separate and apart from their investigatory efforts, if
any, in order to damage Hecimovich's standing in the community. Roth, Burke and Perri's
statements were defamatory per se in that they attributed to Hecimovich immoral qualities
including a disregard for the safety of children that by natural consequence would and have
in fact injured Hecimovich's reputation in the community and his ability to engage in the
avocation of his choice." That is it. No specifics. No reference to what, where, or when. No
reference to oral or {Slip Opn. Page 21} written. Nothing.

Plaintiff's declaration is no better. The words "defame" or "defamation" are not even
mentioned. And the only reference to any claimed "falsity" is this: "12. During our meeting
Perri conceded that she was aware of no facts that would support Burke's claim that
Hecimovich had attempted to institute disciplinary tactics against the child that were punitive
and against the league's rules and philosophy, or that he had precluded a parent from
enjoying continued participation in the basketball experience. Picciotto has confirmed that
Burke's reasons were false. Perri later confirmed he [sic] conclusion that Roth and Burke's
reasons for banning Hecimovich were false. True and correct copies of Perri's November 18,
21 and 23, 2009 emails are attached as Exhibit C." fn. 7 Such alleged falsity does not come
within Civil Code section 46.

Plaintiff did allege, however conclusorily, that the PTO and the women volunteers asserted to
team parents that he is "unfit to coach." However, he is not a professional coach, but a lawyer
who volunteered to coach children. The statement does not have a tendency to injure plaintiff
in his profession. Nor expose him "to hatred, contempt, ridicule, or obloquy," or cause him to
be "shunned or avoided."

Plaintiff also alleged, also conclusorily, that the women volunteers defamed him by attributing
to him "immoral qualities including a disregard for the safety of children that by natural
consequence would have and in fact injured [plaintiff's] reputation in the community and his
ability to engage in the avocation of his choice." While such a statement might be defamatory,
plaintiff has produced no evidence of any defendant attributing to plaintiff "immoral qualities
including a disregard for the safety of children."

But even assuming that plaintiff could produce admissible evidence of the essential elements
of a claim for defamation, his claim would fail because of the privilege in Civil Code section 47,
subdivision (c): a "privileged publication . . . is one made . . . {Slip Opn. Page 22} (c) [i]n a
communication, without malice, to a person interested therein, (1) by one who is also
interested, or (2) by one who stands at such a relation to the person interested as to afford a
reasonable ground for supposing the motive for the communication to be innocent, or (3) was
requested by a person interested to give the information."

As noted above, all three defendants testified that all communications by them were to
"interested persons" who either requested the information or were entitled to it. These
included school officials, PTO members responsible for the boys' basketball program, the
assistant coach, parents of the child player, and league parents. Plaintiff provided no contrary
evidence.

Furthermore, all three declarants testified to an absence of malice. Again, plaintiff put forth no
contrary evidence, no evidence showing " 'a feeling of hatred or ill will going beyond that
which the occasion for the communication apparently justified . . . .' " (Katz v. Rosen (1975)
48 Cal.App.3rd 1032, 1037.) To defeat a SLAPP motion, plaintiff must overcome substantive
defenses (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,
447-448), and his claim would fail for his inability to show malice, as have the claims of many
other plaintiffs who lost SLAPP motions because of such inability. (See Rosenaur v. Scherer
(2001) 88 Cal.App.4th 260, 275; Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1162;
Stewart v. Rolling Stone LLC, supra, 181 Cal.App.4th at pp. 689-690; Daniels v. Robbins
(2010) 182 Cal.App.4th 204, 226-227 [malicious prosecution].)

All plaintiff says in response to defendants' privilege argument is this: "[Defendants] cannot
possibly establish that their admittedly false statements and dishonest actions were
undertaken in good faith and without malice. See, e.g., Rancho La Costa Inc. v. Superior
Court (1980) 106 Cal.App.3d 646, cert. denied 450 U.S. 902 (assertion that conditional
privilege was apparent from complaint with bare bones evidentiary submission amounts to
claim of carte blanch [sic] application, precise contrary of what section 47(c) allows)." From
there plaintiff goes on with three brief ipse dixit arguments that "Roth's story," "Burke's story,"
and "Perri's story" are "inherently self-contradictory and make[] no sense." That is it. It is
insufficient. {Slip Opn. Page 23}

The Remaining Claims Have No Merit

As noted, plaintiff now disagrees as to the gravamen of his lawsuit, and argues that
defendants must also address the other claims as well. As also noted, we have received
supplemental briefing about these claims, and will address them, following a few preliminary
observations.

First, whatever their label, as plaintiff's paragraph 45, incorporated into all causes of action,
expressly states, all the causes of action arise from the same fundamental setting--a setting
involving an issue of public interest. Lee v. Fick (2005) 135 Cal.App.4th 89 is instructive.
Plaintiff there was a high school baseball coach who sued the parents of a player who urged
school officials to fire the coach. His complaint included claims for libel, slander, conspiracy to
interfere with prospective economic advantage, and intentional interference with prospective
economic advantage. Defendants filed a SLAPP motion as to these causes of action, which
the trial court granted as to one cause of action and denied as to the others. Both sides
appealed. The Court of Appeal reversed in favor of defendants, noting that the facts alleged
to support the two causes of action for libel and slander were the same as those asserted to
support the causes of action for alleged interference with economic advantage. (Id. at pp. 93,
99; see also Gerbosi v. Gaims, Weil, West & Epstein. LLP, supra, 193 Cal.App.4th at p. 447
[causes of action for intentional infliction of emotional distress, negligence, malicious
prosecution, and abuse of process all arise from same facts].)

Second, plaintiff's understanding of the SLAPP law is erroneous, especially his bold statement
that "breaching a contract is never a protected exercise of free speech or right of petition and
hence cannot constitute a protected activity for anti-SLAPP purposes," citing Applied
Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108,
1117. That case says no such thing. And well settled law is contrary.

As the Supreme Court put it in Navellier, supra, 29 Cal.4th at p. 92: "As the facts in this
lawsuit illustrate, conduct alleged to constitute breach of contract may also come within
constitutionally protected speech or petitioning. The anti-SLAPP statue's {Slip Opn. Page 24}
definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's
activity that gives rise to his or her asserted liability and whether that activity constitutes
protected speech or petitioning."

That contract claims can be within the SLAPP procedure is also illustrated by Nygard, Inc. v.
Uusi-Kerttula, supra, 159 Cal.App.4th 1027. There, an employer sued its former employee
(and a magazine) for statements made by the former employee in an interview, alleging five
causes of action: breach of contract, breach of the implied covenant of good faith and fair
dealing, interference, breach of the duty of loyalty, and defamation. (Id. at p. 1033.) The trial
court struck the entire complaint under the SLAPP statute. The Court of Appeal affirmed,
holding that the interview was a protected activity because magazines are public fora within
the meaning of Code of Civil Procedure section 425.16, subdivision (e)(3), and the
statements concerned an issue of public interest. (Nygard, Inc. v. Uusi Kerttula, supra, at pp.
1041-1043.)

Third, plaintiff's understanding of what can be considered in connection with the second step
in the SLAPP analysis is also erroneous. That is, plaintiff asserts that "[f]or purposes of the
second stage of the SLAPP test, the Court should look to the allegations of the First
Amended Complaint to determine whether Respondent demonstrates a likelihood of success
on the merits." As noted, the first amended complaint is not before us, and thus irrelevant
here. More to the point, plaintiff cannot rely on his pleading at all, even if verified, to
demonstrate a probability of success on the merits. (Pavia v. Nichols (2008) 168 Cal.App.4th
1007, 1017; Roberts, supra, 105 Cal.App.4th at pp. 613-614.) fn. 8

With that by way of background, and the trial court having sustained the demurrer {Slip Opn.
Page 25} to the third cause of action without leave to amend, we turn to an analysis of the
remaining six causes of action, an analysis we make mindful that plaintiff's burden requires
him to demonstrate that the claim is "legally sufficient." (Navellier, supra, 29 Cal.4th at p. 93.)
And conclude that plaintiff has not demonstrated a likelihood of prevailing on any of them.

The first cause of action is for breach of contract. It contains two paragraphs, as follows:

"47. Encinal basketball coaches are allowed to continue coaching in the absence of good
cause for dismissal. Hecimovich is not aware of any basketball coach not being allowed to
continue to coach, despite various violations of Encinal rules and policies. Hecimovich's
proposal to reduce a player's playing time due to misconduct conformed with Encinal policy,
as well as League policy. When Roth insisted, equivocally, that the policy Hecimovich relied
on either did not apply to Encinal, did not apply to his team, or meant the opposite of what it
says, Hecimovich deferred to her decision. The player was never disciplined in any respect,
and Hecimovich did not violate any Encinal or League policy.

"48. As a result of Defendants' actions as set forth above, Hecimovich has suffered general
damages according to proof."

Passing over whether a volunteer coach of a fourth grade basketball team in an after school
league can have an enforceable contract, plaintiff's claim fails, for several reasons. Plaintiff
has produced no evidence demonstrating the formation of any contract--no evidence of offer,
acceptance, or consideration, no evidence from which the terms of any contract could be
determined. Beyond that, he has pleaded no damages compensable in contract (see
generally 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, §§ 869 et seq., p. 956),
and has provided no evidence of any damages to him. (Anschutz Entertainment Group, Inc. v.
Snepp (2009) 171 Cal.App.4th 598, 643.)

The second cause of action is for violation of the covenant of good faith and fair dealing. To
the extent the claim sounds in contract, it is coextensive with plaintiff's first cause of action. To
the extent plaintiff is alleging a tort claim, it fails, as such a tort exists {Slip Opn. Page 26} only
in insurance contracts. (Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85,
102-103; Sutherland v. Barclays American/Mortgage Corp. (1997) 53 Cal.App.4th 299, 314.)

The fifth cause of action, for negligence, alleges in pertinent parts as follows:

"66. Hecimovich's complaints to Roth involved Encinal student safety in a District and
Encinal-sponsored activity conducted on Encinal school property. Defendants have a
heightened standard of care with regard to providing safe premises and maintaining policies
sufficient to ensure student safety. [¶] . . . [¶]

"68. Burke's decision to bar Hecimovich from coaching based on Roth's reports, and her
failure to discover the inaccuracy and inadequacy of those reports, was similarly negligent in
that Burke had a duty to address student safety issues in her capacity as PTO basketball
coordinator.

"69. Perri's decision to bar Hecimovich from coaching based on Roth's and Burke's reports,
and her failure to discover the inaccuracy and inadequacy of those reports, was similarly
negligent in that Perri had a duty to address student safety issues in her capacity as PTO
President.

"70. As a result of defendants' actions as set forth above, Hecimovich has suffered general
and special damages according to proof. . . ."

Any claim by plaintiff would fail because he did not plead a duty to him for so-called "safety
issues." (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Likewise because plaintiff
has shown no damages. (Anschutz Entertainment Group, Inc. v. Snepp, supra, 171
Cal.App.4th at p. 643.)

The sixth cause of action is for fraud. It alleges as follows:

"72. Roth, Burke and Perri dissuaded Hecimovich from taking legal action regarding their
decision to ban him from coaching during the 2009-2010 season by representing that they
would fairly review that decision and would fairly consider him for future seasons. Perri
represented that an impartial investigation was required and that she would conduct such an
investigation. After convincing Hecimovich to refrain from challenging the PTO's actions, Perri
never conducted such an investigation. Hecimovich {Slip Opn. Page 27} is informed and
believes that Perri never intended to do so.

"73. As a result of defendants' actions as set forth above, Hecimovich has suffered general
and special damages according to proof. Hecimovich has also suffered and continues to
suffer damages to his reputation, according to proof. Hecimovich is also entitled to recover his
reasonable attorneys' fees in bringing this matter to trial."

Plaintiff's pleading fails because he has failed to allege with the requisite specificity " ' "facts
which show how, when, where, to whom, and by which means the representations were
tendered." ' " (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Moreover, as we
understand the so-called misrepresentations, they were made to dissuade plaintiff "from
taking legal action." He has, of course, taken the action, and so there is no reliance on the
claimed representation, a necessary element of a fraud claim. (CACI No. 1900) And, again,
there is no evidence of compensable damage. (Anschutz Entertainment Group, Inc. v. Snepp,
supra, 171 Cal.App.4th at p. 643.)

The seventh cause of action, for intentional infliction of emotional distress, requires several
things missing here. First, the complained of conduct must be outrageous, that is, beyond all
bounds of reasonable decency. (Cervantez v. J.C. Penny Co. (1979) 24 Cal.3d 579, 593;
Rest.2d Torts, § 46, com. d, pp. 72-73 ["no occasion for the law to intervene in every case
where some one's feelings are hurt"].) Second, the conduct must result in severe emotional
distress. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) And third, the tort calls for
intentional, or at least reckless, conduct. (5 Witkin, Summary of Cal. Law, supra, Torts, § 453,
p. 672.) None of these is evidenced here.

The eighth cause of action, labeled by plaintiff as "negligent infliction of emotional distress,"
does not even exist. "The negligent causing of emotional distress is not an independent tort
but the tort of negligence, involving the usual duty and causation issues. Recovery is
generally allowed where there is physical impact. (See e.g., Di Mare v. Cresci (1962) 58
Cal.2d 292, 297, 300 [fall injuring hip and leg, leaving plaintiff suspended in air and causing
emotional trauma]; . . . Lawson v. Management Activities (1999) 69 Cal.App.4th 652, 656
[policy of designating tort as negligent {Slip Opn. Page 28} infliction of emotional distress
often incorrectly results in its being treated as independent tort].)" (6 Witkin, supra, Summary
of Cal. Law, Torts, § 1004, p. 270.)


DISPOSITION
The order denying the SLAPP motion is reversed, and the matter remanded with instructions
to: (1) enter an order granting the motion, and (2) hold a hearing, following further briefing, to
award defendants the attorney fees to which they are entitled under section 425.16.

Kline, P.J., and Haerle, J., concurred.

FN 1. As Witkin distills the pleading rule, "It is sometimes said to be a requirement, and it
certainly is the common practice, to plead the exact words or the picture or other defamatory
matter. The chief reason appears to be that the court must determine, as a question of law,
whether the defamatory matter is on its face or capable of the defamatory meaning attributed
to it by the innuendo. Hence, the complaint should set the matter out verbatim, either in the
body or as an attached exhibit." (5 Witkin, Cal. Procedure (5th ed. 2008), Pleading, § 739, p.
159.)

FN 2. Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.

FN 3. The tentative ruling is not in the record.

FN 4. We also note that plaintiff's attempt to add this material does not comply with California
Rules of Court, rule 8.252(a) or Evidence Code section 459.

FN 5. Among other things, plaintiff describes defendants' brief as spending "four pages
comparing [plaintiff] to the child molester in Terry," and asserts that defendants' "attempt to
analogize [plaintiff's] conduct to the conduct in Terry is shameless and repulsive, and
highlights the seemingly endless capacity of ignorant people to say ignorant things." Then,
after a brief statement of his description of Terry, plaintiff ends with this: "Here, by contrast,
the only persons who displayed wanton disregard for child safety are Roth, who received
[plaintiff's] report of unsafe playing conditions in February 2009 but elected to ignore the
complaint so as not to disturb a wealthy parent, and Liner, who elected to defer to Roth rather
than exercise her prerogative as Encinal School Principal and member of the PTO Board to
reverse Roth's misguided priorities in the interest of child safety."

FN 6. Civil Code section 45 provides: "Libel is a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representation to the eye, which exposes any person to
hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or
which has a tendency to injure him in his occupation."

Civil Code section 46 provides: "Slander is a false and unprivileged publication, orally uttered
. . . which:

"1. Charges any person with crime, or with having been indicted, convicted, or punished for
crime;

"2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

"3. Tends directly to injure him in respect to his office, profession, trade or business, either by
imputing to him general disqualification in those respects which the office or other occupation
peculiarly requires, or by imputing something with reference to his office, profession, trade, or
business that has a natural tendency to lessen its profits;

"4. Imputes to him impotence or a want of chastity; or

"5. Which, by natural consequence, causes actual damage."

FN 7. Interestingly, despite plaintiff's occasional attributions to his assistant coach Picciotto,
plaintiff's brief acknowledges that "both parties' characterizations of Picciotto's statements are
subject to being stricken as hearsay, an objection both parties made at hearing." As to this,
plaintiff is correct.

FN 8. Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289-1290, does state to the contrary.
We note that Salma has not been followed by any other published decision, and that every
other case holds to the contrary. We disagree with Salma, as apparently does the leading
practical treatise: "Comment: The anti-SLAPP statute should be interpreted to allow the court
to consider the 'pleadings' in determining the nature of the 'cause of action'-i.e., whether the
anti-SLAPP statute applies. But affidavits stating evidentiary facts should be required to
oppose the motion (because pleadings are supposed to allege ultimate facts, not evidentiary
facts)." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2011) ¶ 7.1021.1, p. 7(II)-48.)
This Plaintiff had the courage to present its case to a jury.
CALIFORNIA DEFAMATION LAWYERS ASSOCIATION
Freedom Through Truth
Aaron P. Morris is the 2011 President of the California Defamation Lawyers Association, and a
partner of Morris & Stone LLP.

September 2009

Internet Defamation Cases Present Challenging Issues for Jurors

My firm’s latest Internet defamation trial in conservative Orange County provided some
valuable insight into what goes through the jurors’ minds as they decide this type of case...

In this dispute, when an independent contractor’s annual contract was not renewed, she took
to the Internet, posting defamatory comments about our client, the person she blamed for her
termination. She apparently hoped to create enough controversy about our client that he
would be removed, leaving her free to return to work under whomever took his position. All of
her Internet postings were anonymous, with her creating different identities for the various
postings, but we were able to determine her identity by means of a subpoena to the website
operator.

After the jury found in our client’s favor, both in the trial and punitive damage phases,
Defense counsel called for the jurors to be polled. This proved to be entertaining. As we later
discovered when we spoke to the jurors following the punitive damages phase, most were in
the middle of the damages range, but some wanted to award much more and one wanted to
award little or nothing. They got nine jurors to the agree on the amount, but the other two
ends of the spectrum took the opportunity of the polling to give a very emphatic "NO!" when
asked if they had agreed to the dollar amount. One juror who had wanted to award more
seemed especially upset.

The comments of the jurors following the action were very enlightening, and illustrate some of
the issues that arise in any Internet defamation action. First there is the issue as to whether
anyone actually saw the postings. Just because defamatory comments are posted on a given
site does not mean that anyone read them. Thankfully, we had located a witness unrelated to
the action who had seen the postings, so we were able to put a face on "Jane Internet
Browser" for the jury so they would know that people actually saw the postings.

But that only leads to the second issue. Assuming the postings were seen, did they
have any impact on the reputation of the Plaintiff? Our Jane Browser had never
heard of the Plaintiff, and testified that she formed no opinion about Plaintiff good
or bad after reading the postings. Indeed, that lack of an impact was only
strengthened by our own parade of witnesses, all testifying that our client was a
wonderful guy with a great reputation.
That testimony was necessary in order to show the
false and defamatory nature of the postings, but also served to support Defendant’s claim that
despite her best efforts to harm Plaintiff’s reputation, she had not succeeded.

Then there is the issue of actual damages. Of course, general damages are
presumed in a defamation action, but we prefer to show actual damages whenever
possible to overcome the jury’s resistance to awarding damages when no
quantifiable damages have been shown
. It’s a little like asking a jury in a personal injury
action to award damages for pain and suffering even though the victim had no visible injuries.
In our business defamation cases we are almost always able to show actual damages by
means of the loss of income to the business. Here, however,
we took actual damages out
of the special verdict because there was just no proof
of any and an award by the jury
would have been grounds for appeal.

Limited to presumed damages only, the jury gave a fairly modest award, but came back much
bigger on the punitive damages. As suspected, the jurors said that they fought hard over the
presumed damages because they did not get a sense that anyone thought less of the Plaintiff
because of the postings. However, they had far less difficulty awarding the punitive damages
because it was clear that the Defendant needed to be punished and deterred from engaging
in the conduct in the future. The judge agreed, and added an injunction against defendant,
prohibiting her from repeating the comments about Plaintiff. Indeed, he advised defense
counsel (Defendant did not stay for the jury verdict) that Defendant would do well to cease all
comments about Plaintiff.


[In a different case]... court also awarded us over $18000 in attorney fees against the Plaintiff.
Anti-SLAPP
Stevie Wonder wins attorneys fees from defamation lawsuit
By KPCC Wire Services
May 27, 2010

Stevie Wonder and two employees of a Los Angeles radio station he owns are entitled to
$325,525 in attorneys' fees it cost them to get a defamation lawsuit by a former colleague
dismissed, a judge ruled today.

In his suit filed in February 2008, ex-KJLH disc jockey Clifton Winston claimed he was the one
being talked about in an April 18, 2007, broadcast of a voicemail from a woman who alleged
she had gotten pregnant during an extramarital affair and the man would not admit it.

Winston demanded punitive damages from the defendants, including Wonder's company,
Taxi Productions Inc., which operates the radio station.

Winston also sued KJLH program director Aundrae Russell and afternoon radio personalities
Lawrence Williams and Janine Haydel, claiming they allowed the defamatory message to be
broadcast twice within an hour "despite having knowledge of the falsity of the statements and
knowledge of the damage that the statement would cause."

In 2008, Los Angeles Superior Court Judge Michael L. Stern dismissed Wonder, Haydel and
Russell as defendants on grounds the suit interfered with their right to free speech. He also
tossed a claim against Wonder for intentional infliction of emotional distress.

Stern also found the entertainer was unaware the voicemail would be broadcast and that the
topics of the radio broadcast – marital infidelity and children born out of wedlock – are
matters of public concern.

Stern denied similar dismissal motions made on behalf of Williams and Taxi Productions. But
in November, a panel of the 2nd District Court of Appeal reversed that ruling and also threw
out the case against them.

The state Supreme Court denied Hill's petition for review.

In today's ruling, Stern said the lawyers for Wonder, Williams and Haydel spelled out their
requests with precision.

"I have to say, they've documented what they've done," Stern said. "It's probably among the
best prepared I've ever had."

Attorney Michelle E. Hill, who represented Winston, said the amount sought was excessive
and asked for a reduction. But Stephen G. Contopulos, the lawyer for Wonder and the
others, said the documents simply reflected what he and his colleagues billed their three
clients.
San Diego Education Report
SDER
San Diego
Education Report
SDER
SDER
SDER
Code—no attorney fees for defamation
DOCKET NO. S103417
Martin v. Szeto
Filed 2/19/04
IN THE SUPREME COURT OF CALIFORNIA
S103417
Ct.App. 1/4 A094405v.San Francisco County\
Super. Ct. No. 999134

We granted review to resolve a conflict in the lower courts over the proper
interpretation of Code of Civil Procedure section 1021.7.1 The section permits a
court to award attorneys’ fees to a peace officer, or to a public entity employing a
peace officer, that successfully defends an action for damages arising out of the
performance of the officer’s duties if the action was not filed or maintained in
good faith and with reasonable cause. The section also authorizes an award of
fees “in an action for libel or slander.” (Ibid.) In Planned Protective Services v.
Gorton (1988) 200 Cal.App.3d 1, the Court of Appeal held that section 1021.7
authorizes an award of fees in an action for libel or slander only if a peace officer
or an officer’s public employer is a party. (Id., at p. 15.) In the case before us, the
Court of Appeal rejected Gorton and awarded fees to the successful defendants in
a case not involving a peace officer. We reverse.

california no attorney fees defamation
1.        Martin v. Szeto - S103417 - Thu, 02/19/2004 | California Supreme ...
scocal.stanford.edu › Opinions
Feb 19, 2004 – grounds and also because plaintiff filed no opposition. ... awardattorneys' fees
in actions for libel and slander generally, or only in actions ...
2.        California Defamation Lawyers Association | President's Page ...
www.californiadefamationlawyersassociation.com/Presidents_Page.ht...
No doubt, he thought that by suing our client for defamation, he could make all .....Further,
knowing that the attorney fees may have to be paid to the other side, ...
3.        California Defamation Law Blog : Los Angeles Defamation & Anti ...
www.defamationlawblog.com/
Jun 21, 2012 – The above is by no means an exhaustive analysis of the Complaint, but I do ....
Tags: Anti-SLAPP, california anti slapp attorneys fees, motion to ...
4.        Attorneys' Fees : California Defamation Law Blog
www.defamationlawblog.com/articles/attorneys-fees/
Mar 11, 2011 – California Defamation Law Blog : Los Angeles Defamation ... Noprevious case
supports an award of attorneys' fees against a losing plaintiff's ...
5.        Our Team - Elaine Charlson Bredehoft
www.cbc-law.com/our_team/elaine_c_bredehoft.htm
2004) (Represented former President and CEO in defamation and breach of contract - $6.2 ...
United International Investigative Services, C.A. No. ... $750000 verdict, $186000 court award
of attorney's fees, liability upheld, on remand from U.S. ...
6.        Defamation - Ivan Hoffman, Attorney at Law
www.ivanhoffman.com/defamation.html
California Civil Code section 45 provides in part as follows: ... A libel which isdefamatory of the
plaintiff without the necessity of explanatory matter, such as an ...
7.        Internet Defamation and Libel Attorney | San Francisco Bay Area ...
jonesdevoy.com/practice-areas/.../internet-defamation-and-libel/
Attorney with experience handeling defamation lawsuits for content placed on the internet. ...
San Francisco, CA 94105 ... Everyone has the right to voice their freedom of speech, but no
one can ... If successful, it may resolve the case quickly, and may possibly reimburse the
winning party for their attorney fees and costs.

8.        Damages in a defamation case are limited to actual damages, which ...
www.theemploymentlawyers.com/.../Workplace%20defamation%20...
At common law, victims of defamation could be awarded “presumed” damages, even in the
absence of proof of .... Generally, no attorneys fees are awarded to those prevailing under
Massachusetts tort law. .... Town of South Hadley, C.A. No.

9.        A Rabbi sues the University of California for defamation over ugly
blog.librarylaw.com/librarylaw/2005/02/noticenbsp_not_.html
Feb 25, 2005 – Who should pay the university's attorneys' fees? ... that the lawsuit was filed
well past the one year statute of limitations for a California libel claim (Cal. Civ. ...Ct. No.
414796. DISPOSITION: The order appealed from is affirmed.

10.        Workipedia
Kelman v. Kramer
Chaker v. Mateo
DEFAMATION PLAINTIFF DISMISSES CASE AND PAYS
ATTORNEYS FEES OF REID & HELLYER CLIENT
September 14, 2010

Representing the Idyllwild Town Crier against a defamation lawsuit filed by a local attorney in
federal court, Jim Manning filed an anti-SLAPP motion that ultimately lead to the plaintiff
dismissing his lawsuit.

As noted in a news story by the Press-Enterprise, the lawsuit centered around two May 6
newspaper articles the Town Crier published about the Idyllwild Chamber of Commerce's
election process.

Along with agreeing to dismiss the case, the plaintiff also agreed to pay a portion of the
newspaper's attorney's fees, the Business Press also noted. The plaintiff also agreed not to
initiate any further legal action regarding the articles that served as the basis of his lawsuit,
including re-filing the case in California state court.

Winning an anti-SLAPP motion requires the defendant in the case, such as the Idyllwild
Town Crier, to show that the lawsuit is based on activity that is protected by the Constitution.
Once that threshold is met, the burden shifts to the plaintiff to show a reasonable probability
of prevailing. Defendants prevailing on an anti-SLAPP motion are entitled a mandatory
award of reasonable attorney's fees.  These motions are regularly filed in the field of media
law, a significant part of Manning's practice.

Headquartered in Riverside, Reid & Hellyer has been serving the Inland Empire for more
than 100 years as one of the most-respected full service law firms in Southern California,
providing transactional and litigation services in business, real estate, media law,
bankruptcy, and civil rights. The firm's lawyers regularly counsel mediation or arbitration in
lieu of litigation in appropriate matters. They also serve as mediators and arbitrators
themselves.
DOCKET NO. S103417
Martin v. Szeto
Filed 2/19/04      
                                                                             S103417
IN THE SUPREME COURT OF CALIFORNIA                   Ct.App. 1/4 A094405
                                                                             Super. Ct. No. 999134

CRAIG K. MARTIN,
Plaintiff and Respondent,

v.
San Francisco County
RICHARD SZETO et al.,
Defendants and Appellants.

We granted review to resolve a conflict in the lower courts over the proper
interpretation of Code of Civil Procedure section 1021.7.1 The section permits a
court to award attorneys’ fees to a peace officer, or to a public entity employing a
peace officer, that successfully defends an action for damages arising out of the
performance of the officer’s duties if the action was not filed or maintained in
good faith and with reasonable cause. The section also authorizes an award of
fees “in an action for libel or slander.” (Ibid.) In Planned Protective Services v.
Gorton (1988) 200 Cal.App.3d 1, the Court of Appeal held that section 1021.7
authorizes an award of fees in an action for libel or slander only if a peace officer
or an officer’s public employer is a party. (Id., at p. 15.)

In the case before us, the Court of Appeal rejected Gorton and awarded fees to the
successful defendants in a case not involving a peace officer.

We reverse.
Minnesota defamation case, David McKee MD v  Dennis Laurion
(see
blog posts), cited as precedent by UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT upon Appeal from the United States District Court for the
Eastern District of North Carolina.

In deciding an Appeal from the United States District Court for the Eastern District of North
Carolina at Wilmington, MYGALLONS LLC and ZENACON LLC STEVEN VERONA v. U. S.
BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K. E. AUSTIN CORP (12-1287);
The
United States Court of Appeals for the Fourth Circuit cited David McKee MD v.
Dennis Laurion.

From pages 13-14 of http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf:

The parties agree that the defamation claim is governed by Minnesota law because the
alleged defamation originated in Minnesota. They also agree that under Minnesota law,
the elements of a defamation claim are: “(1) the defamatory statement was communicated
to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to
harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community;
and (4) the recipient of the false statement reasonably understands it to refer to a specific
individual.”
McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013)...A defamation
claim cannot be based on a true statement. Id. at 730.

“True statements” include statements that are “true in substance” and contain only “minor
inaccuracies of expression or detail.” Id. In articulating this standard, the Minnesota courts
explain that “substantial truth” means that “the substance, the gist, the sting, of the
libelous charge [is] justified” and the statement “would have the same effect on the mind of
the reader or listener as that which the pleaded truth would have produced.” Id.
Reference
Palmer v. KlearGear.com
Public Citizen
May 2014

Topic(s):         Consumer Justice-Internet Free Speech
Documents:
Default Judgment (05/15/2014)
Complaint (12/18/2013)


Five years ago, John Palmer ordered Christmas gifts online from a web merchant called
KlearGear.com. The gifts never arrived, and John’s attempts to contact KlearGear.com
were unsuccessful
. His wife then posted a negative review on RipoffReport.com. In
2012, the Palmers received a demand from KlearGear.com for $3500. According to
KlearGear.com, through his wife’s post, John violated a “non-disparagement
clause” in the site’s Terms of Use
that prohibits users from taking any action that
negatively impacts KlearGear.com or its reputation, on pain of a $3500 fine.

When the Palmers refused to pay – in part because the Term was not on the website at the
time of his purchases.com – KlearGear.com reported the supposed “debt” to the credit
reporting agencies. When the Palmers disputed the debt with the credit reporting agencies,
KlearGear.com confirmed the supposed “debt” to the credit reporting agencies. More than
a year later – after the Palmers have been turned down for credit, and had their car loan
delayed and paid a higher interest rate on it – this “debt” still mars John Palmer’s credit.

On December 18, 2013, Public Citizen filed suit against KlearGear.com and its debt
collector in federal court on behalf of the Palmers. The suit seeks a declaration that John
does not owe any “debt” for violating the “non-disparagement clause,” and it seeks
compensatory and punitive damages from KlearGear.com for violations of the Fair Credit
Reporting Act, defamation, interference with prospective economic relations, and infliction
of emotional distress.

Because KlearGear.com never appeared to defend, on May 15, 2014, the district court
granted the Palmers a default judgment declaring that “John Palmer does not now, and
never did, owe KlearGear.com or any other party any money based on KlearGear.com's
‘non-disparagement clause’”; holding KlearGear.com liable for violating the Fair Credit
Reporting Act and common law; and setting a hearing to determine damages.
Appeals
Motion to Strike
Sanctions Caselaw

Contempt and sanctions

Article on the Consevatorship of
Becca

Conservatorship of Becca Appellate
opinion
Sanctions codes
Rules of court
Appeal timeliness
Default
Sanctions court of appeal: codes
and judge's benchbook (Findlaw link)
Motion for Reconsideration
Lytwyn Appellant's Opening Brief
re res judicata
Statute of limitations
Business and professions
code
Judge Lisa Schall: Juror
declaration in Kelman v.
Kramer defamation case
John Peter Zenger
Wikipedia
John Peter Zenger
(October 26, 1697 – July
28, 1746) was a German
American printer,
publisher, editor, and
journalist in New York City.
Zenger printed The New
York Weekly Journal.[1]
He was a defendant in a
landmark legal case in
American jurisprudence,
known as The Zenger
Trial. His lawyers, Andrew
Hamilton and William
Smith, Sr., successfully
argued that truth is a
defense against charges
of libel.[2]

In late 1733, Zenger
began printing The New
York Weekly Journal, in
which he voiced opinions
critical of the colonial
governor, William Cosby.
[3] On November 17,
1734, On Cosby's orders,
the sheriff arrested
Zenger. After a grand jury
refused to indict him, the
attorney general Richard
Bradley charged him with
libel in August of 1735.[4]

Zenger case

In 1733, John Peter
Zenger copied a
newspaper in New York to
voice his disagreement
with the trivial policies of
newly appointed colonial
governor William Cosby.
On his arrival in New York
City, Cosby plunged into a
rancorous quarrel with the
Council of the colony over
his salary. Unable to
control the colony's
supreme court he
removed Chief Justice
Lewis Morris, replacing
him with James DeLancey
of the royal party.
Supported by members of
the popular party,
Zenger's New York Weekly
Journal continued to
publish articles critical of
the royal governor. Finally,
Cosby issued a
proclamation condemning
the newspaper's "divers
scandalous, virulent, false
and seditious reflections."

Zenger was charged with
libel. James Alexander was
Zenger's first counsel, but
the court found him in
contempt and removed
him from the case. After
more than eight months in
prison, Zenger went to
trial, defended by the
Philadelphia lawyer
Andrew Hamilton and the
New York lawyer William
Smith, Sr. The case was
now a cause célèbre, with
public interest at fever-
pitch. Rebuffed repeatedly
by Chief DeLancey during
the trial, Hamilton decided
to plead his client's case
directly to the jury. After
the lawyers for both sides
finished arguments, the
jury retired—only to return
in ten minutes with a
verdict of not guilty.

To better understand the
significance of this historic
case, it is important to
examine an actual issue of
the New York Weekly
Journal prior to Zenger's
arrest. Here we see a
typical attack against the
government in Zenger's
original newspaper. Page
one of this issue dated
February 25, 1733,[5]
carries an article under
the pseudonym "Cato."
This article gave its
readers a preview of the
same argument Attorney
Hamilton and William Smith
presented 18 months later
in the government's libel
case against Zenger—that
truth is an absolute
defense against libel.

In defending Zenger in this
landmark case, Hamilton
and Smith attempted to
establish the precedent
that a statement, even if
defamatory, is not libelous
if it can be proved, thus
affirming freedom of the
press in America.[6]
However, if they
succeeded in convincing
the jury, they failed in
establishing the legal
precedent. As late as
1804, the journalist Harry
Croswell was prosecuted
in a series of trials that led
to the famous People v.
Croswell. The courts
repeatedly rejected the
argument that truth was a
defense against libel. It
was only the next year that
the assembly, reacting to
this verdict, passed a law
that allowed truth as a
defense against a charge
of libel.

"Cato writes:

"But this doctrine ('a lible
(sic) is not less a libel for
being true') only holds true
as to private and personal
failings;

The exposing therefore of
public wickedness, as it is
a duty which every man
owes to the truth and his
country, can never be a
libel in the nature of
things?

It has been hitherto
generally understood, that
there was no other Libels
but those against
Magistrates and those
against private men. Now
to me there seems to be a
third set of libels, full as
destructive as any of the
former can probably be, I
mean libels against the
people.
Almost all over the earth,
the people for one injury
they do their governor,
receive ten thousand from
them. Nay, in some
countries it is made death
and damnation, not to
bear all the oppression
and cruelties, which men
made wanton by power
inflict upon those that
gave it them."
Free speech
A Worldview,
Direct From Rural
Indiana
August 07, 2002
BEVERLY BEYETTE
LAT
...In Los Angeles
recently, Kimmel talked
about life in Mooreland
and life in Durham, where
she lives in a 1930s
house with daughter
Katie Romerill, 17, and
son Obadiah Kimmel,
almost 6, by second
husband Ben Kimmel,
from whom she is
separated. She talked of
literature and, oh yes,
litigation.

It seems not all of the
denizens of Mooreland
were thrilled with her
depiction of them in
"Zippy." While her elderly
neighbor, Edythe, who
wore the same dress 23
days in a row and
"clacked her false teeth
together like a castanet,"
had gone to her reward,
Kimmel's third-grade
teacher had not--and her
granddaughters were
hopping mad over
Kimmel's description of
her as both an
incompetent and "the
meanest woman in the
history of the Mooreland
Elementary School."

Kimmel decided to take
the offensive, collecting
depositions from 50 other
former third-graders, all
corroborating her
description. She faxed
them to Doubleday, which
forwarded the best to the
litigious granddaughters,
who promptly dropped
their defamation suit.
When a big
newspaper and a
small-time blogger
say the same
thing, why do
these people sue
the blogger who
gets very few hits,
but not the big
news source?


Years After Criticism
of Its Practices,
Science Consultant
Pushes Back
By BARRY MEIER
NYT
OCT. 11, 2015

Karen Savage, a former
middle-school math
teacher. Ms. Savage said
that she and Cherri Foytlin
rejected an earlier offer
from ChemRisk to drop the
case if they retracted their
article about the company
and its Deepwater Horizon
report.

Dr. Dennis Paustenbach,
the head of the scientific
consulting firm ChemRisk,
has long been a leading
expert for companies
under legal fire for
environmental practices or
product safety. He and his
firm have also drawn the
scrutiny of investigative
journalists.

In 2005, The Wall Street
Journal reported on a
controversial role
ChemRisk played during
the case that became the
basis for the movie “Erin
Brockovich.” Seven years
later, The Chicago Tribune
raised questions about a
study by Dr. Paustenbach
on the safety of flame
retardants. And a 2013
article by the Center for
Public Integrity examined
his efforts to roll back a
proposal concerning
workplace safety.

Dr. Paustenbach has
insisted that ChemRisk’s
work is scientifically sound
and ethical, adding that
plaintiffs’ lawyers have
been behind the attacks
on its credibility. And until
recently, the company had
never sued any
publications or writers for
defamation.

But the firm is now locked
in a legal fight with some
unlikely and defiant
opponents: two
environmental activists
who published an unpaid
article in The Huffington
Post about ChemRisk’s
work related to the
Deepwater Horizon oil spill.
“If they had not said a
word and let it go, it would
have slipped off into
obscurity,” said one of the
authors of the article,
Karen Savage, a former
middle-school math
teacher who noted that the
article was initially read by
only 400 people.

The lawsuit against Ms.
Savage, 49, and her co-
defendant, Cherri Foytlin,
42, highlights how the
Internet has blurred the
line between activists and
journalists. But it also
raises questions about
why ChemRisk is pursuing
the case when it chose not
to sue a more formidable
adversary, The Wall Street
Journal, against which it
raised similar complaints.

Thomas Clare, a lawyer
who has long represented
Dr. Paustenbach, said the
researcher was traveling
and unavailable for an
interview. In a statement,
Chemrisk, which is now a
unit of Cardno ChemRisk,
said its goal in bringing the
action was to “set the
record straight and alert
anyone who chooses to
publish false claims that
they will be held
accountable.”...