You are on page 1of 105

CERTIFICATE OF INTERESTED PARTIES

There are no interested entities or persons to list in this
certificate (Cal. R. Ct. 8.208(e)(3).)

Dated: February 6, 2018 By: ___________________________
Jeffrey Lewis

Attorney for appellant

2
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES ................................ 2
TABLE OF CONTENTS.................................................................... 3
TABLE OF AUTHORITIES .............................................................. 8
SUMMARY OF ARGUMENT ......................................................... 13
STATEMENT OF APPEALABILITY ............................................ 20
STANDARD OF REVIEW............................................................... 21
STATEMENT OF THE CASE ........................................................ 22
A. The Filing of the Complaint ....................................... 22

B. The Respondents’ Anti-SLAPP Motion ..................... 22

C. The June 21, 2017 Order Granting the Anti-SLAPP
Motion as to the Individual Defendants.................... 23

D. The August 4, 2017 Order as to the Corporate
Defendants ................................................................... 26

STATEMENT OF THE FACTS ...................................................... 29
A. The Times Hires Rall in 2009 as a Political
Cartoonist Working Under the Times’ Direction and
Editorial Control .......................................................... 29

B. The October 3, 2001 Detention of Rall by the LAPD
for Jaywalking ............................................................. 30

C. Rall’s Complaint and the LAPD’s Purported
Investigation ................................................................ 30

D. Rall’s May 11, 2015 Blog Post about the LAPD’s
Crackdown on Jaywalking .......................................... 31

E. The Times’ Rushed “Investigation” Based on an
Unintelligible Audio File of Rall’s 2001 Detention .. 31

3
F. The Times’ Firing of Rall ............................................ 33

G. The Times’ July 28, 2015 Defamatory Publication
about Rall’s Termination in the Note to Readers..... 34

H. Rall’s August 2, 2015 Presentation to the Times of
Enhanced Audio and Rall’s Demand for a
Retraction ..................................................................... 35

I. The Times’ August 19, 2015 Publication of a
Defamatory Article about Rall ................................... 36

J. Rall’s Damages ............................................................. 38

ARGUMENT ..................................................................................... 39
I. Summary of Argument................................................ 39

II. The Order Granting the Anti-SLAPP Motion Should
be Reversed Because the Employment Causes of
Action Alleged by Rall did not Arise from Activity
Protected by the First Amendment ........................... 40

A. The Anti-SLAPP Law Does not Apply to Rall’s
Employment Claims Based on the California
Supreme Court’s Decision in Park ..................... 40

B. The Anti-SLAPP Law Does not Apply to Rall’s
Employment Claims based on Division One’s
Decision in Wilson v. CNN .................................. 45

III. The Order Granting the Anti-SLAPP Motion Should
be Reversed Because Rall Established a Reasonable
Probability of Prevailing on the Merits ..................... 49

A. Summary of Rall’s Employment Claims............ 49

4
B. The Result Below Would Establish an Absolute
Privilege for Media Defendants to Discriminate
against Employees who Produce Content ......... 51

C. Rall Established a Probability of Prevailing on
the Merits that he was Wrongfully Terminated
in Violation of Public Policy ................................ 54

1. Although the Threshold Question is Whether
Rall was the Times’ Employee or
Independent Contractor, the Trial Court
Below Refused to Analyze Rall’s Employment
Status .............................................................. 54
2. Rall was an Employee not a Contractor ...... 54
a. Rall is Presumed to be an Employee until
Proven Otherwise .................................... 54
b. Determining Rall’s Employment Status is
a Jury Question ....................................... 55
c. Rall Pled and Proved a Prima Facia
Cause of Action for Wrongful
Termination in Violation of Public
Policy ........................................................ 57
D. Rall Pled and Proved a Prima Facia Contract
Claim ..................................................................... 60

E. Rall Established a Probability of Prevailing on
the Merits as to his Defamation Claims ............ 63

1. The Trial Court Erred in Applying the Fair
and Accurate Report Doctrine to Bar Rall’s
Claims Because Section 47(d) does not Apply;
even if it Applied, Rall’s Evidence Below
Raised Prima Facia Evidence Sufficient for
the Defense to be Decided by a Jury ........... 63

5
a. The police file accumulated in 2001 is not
a “public official proceeding” privileged by
Section 47(d) ............................................ 63
b. The July 2015 Note to Readers and
August 2015 Article were not “true and
fair” reports of the LAPD’s file; they were
reports of the Times’ own intervening
investigation ............................................ 69
c. The LAPD personnel complaint
investigation is a confidential file,
exempted from privilege by Section
47(d)(2)(C), whose “communication to a
public journal” violates “any requirement
of confidentiality imposed by law” ......... 70
d. Even if all prior arguments are ignored,
the applicability of the “fair and true”
report doctrine of Section 47(d) in this
case is a jury issue .................................. 71
e. The Trial Court’s conclusion that a
majority of the Times’ publications are
privileged is a determination that a
minority of the Times’ publications were
not privileged ........................................... 72
2. The Note Included False Statements of Fact
......................................................................... 74
3. The Article Included False Statements of
Fact ................................................................. 75
4. The Note and the Article are not Protected as
Mere Opinions or Conclusions ..................... 76
5. Because it was Defamation Per Se Damages
are Presumed ................................................. 80
6. Rall Suffered Actual Damages ..................... 80

6
7. Rall is not a Limited Public Figure, But Even
if he Were, Rall Made out a Prima Facia
Case of Malice Sufficient for his Defamation
Claim to Proceed ............................................ 81
a. Rall was not a limited public figure ...... 82
b. Malice is demonstrated by over a dozen
“Red Flags” that the Times proceeded to
fire Rall and ruin his reputation without
regard to the truth .................................. 83
F. Rall established a probability of prevailing on
the merits as to his blacklisting claims ............. 87

CONCLUSION ................................................................................. 91
CERTIFICATE OF WORD COUNT .............................................. 92
EXHIBITS ......................................................................................... 93
Exhibit 1 – The July 28, 2015 Note to Readers .................. 94
Exhibit 2 – The August 19, 2015 Article ............................. 96

7
TABLE OF AUTHORITIES
CASES
1-800 Contacts, Inc. v. Steinberg
(2003) 107 Cal.App.4th 568 ......................................................... 75
Ali v. L.A. Focus Publication et al.
(2003) 112 Cal.App.4th 1477 .....................................56, 57, 58, 59
Ampex Corp. v. Cargle
(2005) 128 Cal.App.4th 1569 ....................................................... 82
Associated Press v. Labor Board
(1937) 301 U.S. 103....................................................................... 53
Baral v. Schnitt
(2016) 1 Cal.5th 376 ............................................................... 67, 73
Burrill v. Nair
(2013) 217 Cal.App.4th 357 ............................................. 64, 67, 68
Claybrooks v. ABC Inc.
(M.D.Tenn. 2012) 898 F. Supp.2d 986 ........................................ 44
Commonwealth Energy Corp. v. Investor Data Exchange Inc.
(2003) 110 Cal.App.4th 26 ........................................................... 23
Crane v. Arizona Republic
(1992 9th Cir.) 972 F.2d 1511 ...................................................... 64
Dickinson v. Cosby
(2017) 17 Cal.App.5th 655 ........................................................... 79
Foley v. Interactive Data Corp.
(1988) 47 Cal.3d 654 ..................................................................... 60
Gerbosi v. Gaims, Weil, West & Epstein, LLP
(2011) 193 Cal.App.4th 435 ................................................... 21, 49
Hagberg v. Cal. Fed. Bank
(2004) 32 Cal.4th 350 ................................................................... 66
Hailstone v. Martinez
(2008) 169 Cal.App.4th 728 ......................................................... 40

8
Handelsman v. San Francisco Chronicle
(1970) 11 Cal.App.3d 381 ............................................................. 19
Hausch v. Donrey of Nevada Inc. d/b/a Las Vegas Review-
Journal
(D.Nev.1993) 833 F. Supp. 822 .................................................... 52
Hawran v. Hixon
(2012) 209 Cal.App.4th 256 ................................................... 67, 70
Haynie v. Superior Court
(2001) 26 Cal.4th 1061 ................................................................. 70
Healthsmart Pacific, Inc. v. Kabateck
(2016) 7 Cal.App.5th 416 ............................................................. 19
Hunter v. CBS Broadcasting Inc.
(2013) 221 Cal.App.4th 1510 ....................................................... 42
Imig v. Ferrar
(1977) 70 Cal.App.3d 48 ............................................................... 66
Jackson v. Mayweather
(2017) 10 Cal.App.5th 1240 ................................................... 74, 83
J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP
(2016) 247 Cal.App.4th 87, 98 ..................................................... 71
Jordan-Benel v. Universal Studios Inc. et al.
(9th Cir. 2017) 859 F.3d 1184 ...................................................... 53
King v. Borges
(1972) 28 Cal.App.3d 27 ............................................................... 66
McClatchy Newspapers Inc. v. Superior Court
(1987) 189 Cal.App.3d 961 ........................................................... 63
McGarry v. University of San Diego
(2007) 154 Cal.App.4th 97 ........................................................... 23
Miami Herald v. Tornillo
(1974) 418 U.S. 241................................................................. 27, 51
Nam v. Regents of University of California
(2016) 1 Cal.App.5th 1176 ........................................................... 41

9
Narayan v. EGL Inc.
(9th Cir. 2010) 616 F.3d 895 ........................................................ 54
Navellier v. Sletten
(2002) 29 Cal.4th 82 ..................................................................... 49
Park v. Board of Trustees
(2017) 2 Cal.5th 1057 ................................................. 18, 41, 42, 43
Partington v. Bugliosi
(9th Cir.1995) 56 F.3d 1147 ............................................. 26, 76, 77
Passaic Daily News v. NLRB
(D.C.Cir.1984) 736 F.2d 1543 ...................................................... 53
People ex rel. Gallegos v. Pacific Lumber Co.
(2008) 158 Cal.App.4th 950 ......................................................... 64
Pierce v. San Jose Mercury News
(1989) 214 Cal.App.3d 1626 ......................................................... 72
Reader’s Digest Assn. v. Superior Court
(1984) 37 Cal.3d 244 ..................................................................... 82
Reid v. Google, Inc.
(2010) 50 Cal.4th 512 ................................................................... 56
S.G. Borello & Sons, Inc. v. Department of Industrial Relations
(1989) 48 Cal.3d 341 ..................................................................... 55
Shamsian v. Atlantic Richfield Co.
(2003) 107 Cal.App.4th 967 ......................................................... 89
Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260 ............................................................. 25, 59
Taheri Law Group v. Evans
(2008) 160 Cal.App.4th 482 ......................................................... 21
Tieberg v. Unemployment Ins. App. Bd.
(1970) 2 Cal.3d 943 ................................................................. 55, 56
Trilogy at Glen Ivy Maintenance Association v. Shea Homes, Inc.
(2015) 235 Cal.App.4th 361 ................................................... 21, 80

10
Tuszynska v. Cunningham
(2011) 199 Cal.App.4th 257 ......................................................... 42
United States v. Reyes
(5th Cir. 2017) 866 F.3d 316 ........................................................ 21
Weinberg v. Feisel
(2003) 110 Cal.App.4th 1122 ....................................................... 45
Wilson v. Cable News Network
(2017) 214 Cal.Rptr.3d 290 .......................................................... 18
Wilson v. Cable News Network, Inc.
(2016) 6 Cal.App.5th 822 ..................................................... passim
Wong v. Tai Jing
(2010) 189 Cal.App.4th 1354 ....................................................... 73
Yelp Inc. v. Superior Court
(2017) 17 Cal.App.5th 1 ............................................................... 79
Yow v. National Enquirer, Inc.
(E.D. Cal. 2008) 550 F.Supp.2d 1179 .......................................... 80

STATUTES
42 U.S.C. Section 1983 .................................................................... 59
Civil Code, Section 47 .................................................... 59, 63, 64, 67
Code of Civil Procedure, Section 425.16 ............................ 20, 40, 46
Government Code, Section 6254 ..................................................... 70
Labor Code, Section 1050 ................................................................ 87
Labor Code, Section 1054 .......................................................... 87, 88
Labor Code, Section 2750.5 ............................................................. 55
Labor Code, Section 2922 ................................................................ 60
Labor Code, Section 3202 ................................................................ 55
Labor Code, Section 3357 ................................................................ 55
Penal Code, Section 832.7 ......................................................... 70, 71

11
OTHER AUTHORITIES
Herald News
(1985) 276 NLRB 605 ................................................................... 53
Implied Contract Rights to Job Security
(1974) 26 Stan.L.Rev. 335 ............................................................ 60

RULES
California Rules of Court, Rule 8.1105 .................................... 18, 45

12
No. B284566
(Related to Case No. B287721)

IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION 8

Frederick Theodore Rall III,

Plaintiff and Appellant,

v.

Tribune 365, LLC, et al.,

Defendants and Respondents.

Proceedings of the Los Angeles County Superior Court
Case No. BC613703 • Hon. Joseph R. Kalin, Judge Presiding

SUMMARY OF ARGUMENT
This is an appeal by Appellant Frederick Theodore Rall III
(“Rall”) from orders granting Anti-SLAPP motions as to his
wrongful termination and defamation claims against the Los

13
Angeles Times.1 On October 2, 2009, the Times hired Rall to draw
weekly political cartoons. From 2009 until 2015, Rall drew
cartoons that were created exclusively for the Times. The Times
terminated Rall following a rushed ersatz “investigation” into a
complaint by the Los Angeles Police Department (“LAPD”) that
Rall fabricated a Times blog post critical of the LAPD.
At the heart of this dispute is the veracity of Rall’s 2015
account of a 2001 detention by the LAPD for jaywalking. While
investigating Rall for jaywalking, LAPD Motorcycle Officer Will
Durr (“Durr”) grabbed Rall, spun him around, threw him against
a wall and handcuffed him. A second LAPD officer directed Durr
to release Rall. After Durr issued a citation, he threw Rall’s
driver’s license to the gutter. An angry crowd observed and
commented on Durr’s actions. An audio recording of the detention
revealed comments, some vulgar, confirming that Rall was
handcuffed. Rall filed a complaint with the LAPD. In response,
the LAPD made a feckless attempt to call Rall, left a voice
message on the wrong answering machine and abandoned the
complaint without investigation.
In May 2015, Rall published a blog post which accompanied
his regular editorial cartoon in the Times. Like all of Rall’s blog
posts, the piece was edited and approved by Rall’s editor at the
Times. The primary focus of Rall’s blog post was an LAPD
jaywalking crackdown, but it also included Rall’s account of his

1 Respondents are Tribune 365, LLC, Los Angeles Times
Communications LLC, Tronc, Inc., Tribune Interactive, LLC,
Austin Buetner, Nicholas Goldberg, Paul Pringle and Deidre
Edgar. Each respondent employed Rall or otherwise contributed
to the wrongdoing alleged by Rall. For clarity’s sake, Respondents
are referred to herein collectively as “the Times.”

14
2001 detention and the LAPD’s failure to investigate his
complaint. The LAPD was incensed at Rall’s piece and provided
the Times with portions of the confidential Internal Affairs
complaint file, including a digital audio recording that Durr had
secretly made of the detention. The digital audio file was not the
original tape, was of unknown provenance, was not supplied
through an LAPD official records release and was of extremely
poor sound quality. Despite its suspicious source and quality, the
Times did not question its authenticity or listen to it carefully.
The Times concluded without any meaningful investigation that
because the Times could not hear evidence on the audio to
support Rall’s account, Rall must have fabricated the section of
his blog post recounting his 2001 detention. The Times
unceremoniously fired Rall. To add insult to injury, the Times
posted online and published in print a libelous “Note to Readers”
defending the LAPD and concluding that Rall had no integrity.
The Note to Readers’ assessment of the LAPD audio stated
that the audio:
gives no indication that there was physical
violence of any sort by the policeman or that Rall’s
license was thrown into the sewer or that he was
handcuffed. Nor is there any evidence on the
recording of a crowd of shouting onlookers.
(1AA 64, emphasis added).2

2 Citations to the record herein take the form of “[volume]AA
[page]” for the Appellant’s Appendix, “[date] RT [page]” for the
Reporter’s Transcript and “RFJN” to Appellant’s Request for
Judicial Notice filed concurrently herewith.

15
After the Times fired him, Rall had the 2001 audio
enhanced. In audio forensics, enhancement is the scientific
analysis and improvement of audio clarity, a process that mostly
involves filtering away unwanted sounds in order to leave a more
understandable version. The enhanced audio revealed that Rall’s
blog was truthful. Onlookers criticized Officer Durr for his rough
and unnecessary conduct, including his handcuffing of Rall:

“Why’d you handcuff him?”

“So he’s detaining him?”

“He was just jaywalking. You need to take off ...
no take off his handcuffs.”

(3AA 707 ¶ 182).

Rall presented the enhanced audio to the Times and
demanded a public retraction and apology. Despite coverage by
other media outlets criticizing the Times and confirming the
results of the enhanced audio, numerous reader complaints and a
call by the professional organization for editorial cartoonists for
an independent investigation, the Times never contacted Rall to
discuss the enhanced audio or reassess their earlier conclusion.
Instead, the Times stood by its firing and published a second
story:

[The Times] continues to have serious questions about
the accuracy of Rall’s blog post…[I]n light of all the
available information, The Times stands by its note to

16
readers and its judgment that Rall’s May 11 blog post
should not have been published.

(1AA 73).

The Times had no interest in the truth about Rall’s 2001
detention, and as confirmed by the Times’ attorneys below, the
truth did not matter to the Times in 2017 when the Anti-SLAPP
motions were argued below.

Figure 1 - Derived from 7/14/17 RT 348
But the Times is wrong. The truth about the 2001
detention goes to the heart of Rall’s case. It clears him of the
charge of fabrication and illustrates the defamatory nature of the
articles. The truth absolutely matters, and at this stage of the
case, Rall’s enhanced tape must be presumed accurate.
The Times filed Anti-SLAPP motions in response to Rall’s
complaint. The trial court incorrectly concluded that Rall’s
employment claims arose from the Times’ protected right to make
publishing decisions. Although the Times is a newspaper, not all
of its activities are protected by the First Amendment. As
observed by Division One of this Court: “The press has no special
immunity from generally applicable laws.” (Wilson v. Cable News

17
Network, Inc. (2016) 6 Cal.App.5th 822 (“Wilson.”)3 Employment
claims asserted against the Times are not per se protected by the
First Amendment by virtue of the Times’ status as a newspaper.
Here, the Times’ decision to terminate Rall and defame him
were private actions by an employer not subject to any First
Amendment protection. To the contrary, if the First Amendment
applies at all to this dispute, it protects Rall’s freedom to criticize
the LAPD without fear of retribution.
The trial court erred in granting the Times’ Anti-SLAPP
motions in two major respects:
First, it held that the Times had met its initial burden to
prove that Rall’s employment claims arose from constitutionally
protected activity. This was in error. In Park v. Board of Trustees
(2017) 2 Cal.5th 1057 (“Park”), the Supreme Court held that a
defendant must do more than prove that protected activity
occurred before or after the conduct giving rise to liability. To
invoke Anti-SLAPP protection, a defendant must prove that the
conduct giving rise to the lawsuit is itself protected activity.
Clearly, the Times has a First Amendment right to publish the
stories of its choosing. But it has no constitutional right to
illegally terminate an employee. Under the standard announced
in Park, the trial court’s order must be reversed.
Second, Rall has demonstrated a probability of prevailing
on the merits. When the evidence below is viewed under
summary judgment-like standards, Rall easily established more

3The California Supreme Court granted review of Wilson on
March 1, 2017 and denied depublication. (Wilson v. Cable News
Network (2017) 214 Cal.Rptr.3d 290.) Pending review, Wilson
remains persuasive authority. (Cal. Rules of Court, Rule
8.1105(e)(1)(b).)

18
than “minimal merits.” The trial court found that some of the
Times’ statements were protected under the fair report provisions
of Civil Code section 47(d). That statute does not apply to
confidential files such as the LAPD complaint file or Durr’s
recording. Moreover, there never was an official proceeding
within the meaning of the statute, and the Times’ reporting was
of its own investigation, not the LAPD’s. Even if Section 47(d)
does apply, however, whether the report was “fair and true” is a
question of fact for the jury. (Healthsmart Pacific, Inc. v.
Kabateck (2016) 7 Cal.App.5th 416, 431). When a defendant
asserts a fair and true report defense, it is for the jury to decide
the effect of the publication on the reader – not the court.
(Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d
381, 386). Once the 47(d) privilege is defeated, the articles are
plainly defamatory, not expressions of opinion, and the “doubled
down” article in the face of the enhanced tape is malicious.
The orders granting the Anti-SLAPP motions must be
reversed.

19
STATEMENT OF APPEALABILITY
This is an appeal from two orders granting special motions
to strike. Those June 21, and August 4, 2017 orders are
appealable. (Code Civ. Proc., § 425.16, subd.(i).) A timely notice of
appeal was filed on August 1, 2017 (18AA 5934), within 60 days
of notice of entry of the orders. (18AA 5910 [June 21, 2017 minute
order]; 18AA 5918 [August 4, 2017 order]; 18AA 5934 [notice of
appeal].)

20
STANDARD OF REVIEW
This is an appeal from orders granting Anti-SLAPP
motions. The standard of review is de novo. (Trilogy at Glen Ivy
Maintenance Association v. Shea Homes, Inc. (2015) 235
Cal.App.4th 361, 367-68.) The Court of Appeal applies the same
two-step procedure the trial court does. (Gerbosi v. Gaims, Weil,
West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) First the
defendant must establish that the challenged cause of action
arises from activity protected by the First Amendment. (Taheri
Law Group v. Evans (2008) 160 Cal.App.4th 482, 488.) If the first
prong is met, the burden shifts to the plaintiff to establish a
probability of prevailing on the merits. (Ibid.):

Plaintiff must show the complaint is legally sufficient
and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.

(Taheri Law Group v. Evans, supra, 160 Cal.App.4th at p.
488 [cleaned up].)4

4 This brief uses the parenthetical signal “[cleaned up]” to
indicate that internal quotation marks, alterations, and citations
have been omitted from quotations. See Jack Metzler, Cleaning
Up Quotations, J. App. Prac. & Process (forthcoming 2018),
http://dx.doi.org/10.2139/ssrn.2935374. See also United States v.
Reyes (5th Cir. 2017) 866 F.3d 316, 321.

21
STATEMENT OF THE CASE

A. The Filing of the Complaint
Rall’s complaint, filed on March 14, 2016, alleges
defamation, blacklisting, violation of Labor Code, section 1102.5,
wrongful termination, breach of contract and intentional
infliction of emotional distress. (1AA 34).5
On April 25, 2016, Tribune Media Company filed its
answer. (1AA 74). That same day, Tribune Publishing Company,
Los Angeles Times Communications LLC, Austin Beutner,
Nicholas Goldberg, Paul Pringle and Deidre Edgar filed their
answer. (1AA 92). On May 19, 2016, Tribune Interactive, LLC
filed its answer. (1AA 401).

B. The Respondents’ Anti-SLAPP Motion
On May 13, 2016, Tribune Publishing Company, Los
Angeles Times Communications LLC and Tribune Interactive,
LLC filed an Anti-SLAPP Motion. (1AA 112). Tribune Media
Company filed a separate Anti-SLAPP motion that same day
(1AA 115), as did Austin Beutner, Nicholas Goldberg, Paul
Pringle and Deidre Edgar. (1AA 189).
Rall filed his opposition papers on February 14, 2017. (2AA
631). His opposition was supported by the declarations of Rall,
Peter Dunlap-Shohl, David Fitzsimmons, Bruce Plante, Ed Stein,
Ben Sargent, Kirk Anderson, Larissa Meriman, Cullum Rogers,

5For this brief, the first through third causes of action are
referred to as the defamation claims and the fourth through
eighth causes of action are referred to as the employment claims.

22
Gina Smith, Peter Dunlap-Shohl and Greg Palast. (2AA 527 –
3AA 678).
On February 21, 2017, the moving parties filed reply
papers. (12AA 3834, 3957). Additional briefing occurred on June
6, 2017. (18AA 5870-5887).

C. The June 21, 2017 Order Granting the Anti-SLAPP
Motion as to the Individual Defendants
Oral argument on the individual defendants’ Anti-SLAPP
motion was held on June 21, 2017. (18AA 5910). The trial court
granted that motion the same day. (18AA 5910). As to the first
prong of the Anti-SLAPP inquiry, the trial court held that the
articles concerned an issue of public interest or a public issue
because Rall “as an editorial cartoonist and opinion writer. . . was
publicly known. Plaintiff was a public figure for the purpose of
his pieces published in the Times.” (18AA 5915).
The significance of Rall’s “public figure” status, according
to the court, was that here “the subject of the statement or
activity precipitating the claim was a person or entity in the
public eye,” Wilson citing Commonwealth Energy Corp. v.
Investor Data Exchange Inc. (2003) 110 Cal.App.4th 26, 33, and
thus fell into one of three categories of cases meeting the public
issue or public interest prong of the Anti-SLAPP statute. In
determining Rall’s public figure status, the trial court relied on
McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, a
case involving the firing of a popular college football coach, and
distinguished Wilson, a discrimination case involving the firing of
a television reporter for purported plagiarism. The trial court
distinguished Wilson, even though Wilson had authored
hundreds of news articles, because Rall:

23
was a named person at the Los Angeles Times. He was
a political cartoonist, and when his cartoons appeared
they were signed. His blog did not consist of news
articles, but were opinion pieces. . . . Here the Times
was not just explaining a termination, but
withdrawing its support from an article it published
on a matter of public interest.

(18AA 5915).

Notably, the trial court rejected the respondents’ argument
that the allegedly defamatory articles were privileged statements
made in connection with an issue under an official proceeding
authorized by law:

[T]he LAPD investigation into the issuance of
plaintiff’s jaywalking ticket is not the focus of the
articles. It is background. The focus of the articles is
the reasons why the Los Angeles Times terminated his
relationship with plaintiff, and on reconsideration
affirmed that decision.

(18AA 5912).

Nevertheless, the trial court found the individual
defendants had met their burden on the first prong of the Anti-
SLAPP motion because Rall’s blog was on a topic of public
interest (the police jaywalking crackdown), and therefore “[t]hat

24
the Times found the article inaccurate appears also to be a
matter of public interest.” (18AA 5914).

In conclusion, plaintiff was a public figure for his
cartoons on the Times editorial pages and websites,
plaintiff’s article was a contribution to an issue which
was a matter of public interest and when the Times
determined that plaintiff’s article lacked credibility
and contained inaccuracies its articles on that decision
and the decision to terminate plaintiff were also
matters of public interest.

(18AA 5915).

As for the second prong of the Anti-SLAPP motion –
whether Rall established a probability of success on the merits –
the trial court’s opinion loses its focus and is hard to decipher.
The order fails to mention that at this stage of the proceeding,
the plaintiff’s evidence is to be taken as true, and that all plaintiff
need show is “minimal merit.” (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 291). More importantly, the trial
court failed to mention that Rall had the audio recording of his
arrest enhanced, and the enhanced recording vindicates his
version of the facts. As Rall wrote in the blog post at issue, Rall
was indeed handcuffed. Passers-by did gather to witness the
LAPD’s detention of Rall. They also made critical comments to
the officer who handcuffed Rall.
Moreover, Rall provided the enhanced audio and its
transcript to the Times before the Times published the second
article. The order granting the Anti-SLAPP ducks this issue by

25
holding that the LAPD’s provision of false information and the
Times’ reckless reliance on it were absolutely privileged, and that
the remainder of both articles were really only “defendants’
conclusions based on the facts presented earlier in the pieces.
Those conclusions are protected under the First Amendment.
(Partington v. Bugliosi (9th Cir.1995) 56 F.3d 1147, 1156-1157).”
(18AA 5917). The trial court provides no analysis of the
defamatory nature of the articles, other than to describe them as
protected “conclusions”:

Plaintiff cannot establish a reasonable probability of
prevailing on the defamation claim, as the majority of
the content of the editor’s note and article are
privileged, and there is no evidence that any of the
statements in either are false.

(18AA 5917).

D. The August 4, 2017 Order as to the Corporate
Defendants
A hearing was held on July 14, 20176 as to the Anti-SLAPP
motions by the remaining defendants. (18AA 5918). That motion
was granted. (18AA 5918). The August 4, 2017 order stuck all
causes of action. Unlike the June 21, 2017 ruling, this second

6Rall was in pro per at the time of oral argument of the second
Anti-SLAPP motion. The trial court denied his request for a
continuance of the hearing to obtain new counsel. Rall does not
contest that denial of a continuance here.

26
ruling does acknowledge that Rall “had the LAPD tape7 enhanced
and it did support [Rall’s] account.” (18AA 5920). Although the
existence of the enhanced tape that vindicated Rall was noted by
the July 14, 2017 ruling it ultimately had no legal importance to
the court below.
With regard to the employment claims, the trial court held
that the First Amendment protects the right of the Times to
publish or not publish any story it chooses, relying on Miami
Herald v. Tornillo (1974) 418 U.S. 241, 258 and its progeny. The
trial court’s opinion can be construed as holding that media
defendants have the absolute privilege to retaliate against
whistleblowers, discriminate, and violate contractual agreements
or commitment to good faith dealing, so long as the fired
employee worked in a content-related job assignment.
With regard to the defamation counts, the trial court
mirrored its findings of public interest as outlined in the June 21,
2017 decision. It held that Rall is more like a well-known college
football coach than the TV reporter fired for purported
plagiarism, a violation of journalistic ethics. (18AA 5930).
As for the probability of prevailing on the merits, the trial
court concluded: “the decision whether to publish plaintiff’s

7 The trial court was mistaken when it used the word “tape.” The
LAPD never produced Durr’s original microcassette tape and the
Times never possessed a “tape.” This is not mere semantics. The
audio degradation of transferring the audio from the original tape
to the current audio file, via an unknown number of copies of
copies, is a material issue below. Moreover, the absence of the
original “tape” makes it difficult to assess whether the LAPD
spliced or edited its original, unproduced “tape.”

27
cartoons and blogs is an absolute privilege. Plaintiff cannot
overcome the privilege.” (18AA 5931).
With regard to the defamation counts, the August 4, 2017
ruling tracks the June 21, 2017 language exactly, adding these
sentences:
Plaintiff has submitted evidence that he had the tape
of the jaywalking incident enhanced, and the
enhanced tape establishes his recounting of the
incident was accurate. Plaintiff has not established
that defendants were obligated to find the enhanced
tape accurate, credible and audible, determine that
the enhanced tape stated what plaintiff said it stated,
and print a story stating that plaintiff’s enhanced tape
fully supported plaintiff’s account.

(18AA 5932).

Nowhere does the trial court indicate its awareness of its
obligation, at this stage of the proceedings, to assume that Rall’s
evidence is to be believed and, therefore, the Times intentionally
published false and defamatory articles. Again, the court avoided
this question by holding that the articles were protected opinion.
As with the June 21, 2017 opinion, the trial court held:

[Rall] cannot establish a reasonable probability of
prevailing on the defamation claims, as the majority of
the content of the editor’s note and article are
privileged, and there is no evidence that any of the
statements in either are false.

(18AA 5933).

28
STATEMENT OF THE FACTS

A. The Times Hires Rall in 2009 as a Political
Cartoonist Working Under the Times’ Direction
and Editorial Control
Rall is an editorial cartoonist and opinion columnist. (3AA
674 ¶ 1). In 2009, the Times hired Rall to be the Times’ staff
cartoonist.8 (3AA 676 ¶ 10). The Times paid Rall $400 per week
for this work. (3AA 676 ¶ 12).9 The Times edited Rall’s work and
provided him publishing deadlines. (3AA 676-77 ¶¶ 14-19). The
Times editorial staff edited, accepted and rejected Rall’s work.
(3AA 677 ¶¶ 17-19; 681 ¶ 43). Between 2009 and 2015, Rall drew
cartoons exclusively for the Times. (3AA 677 ¶ 22). In 2013, the
Times requested that Rall write blog posts exclusively for the
Times. (3AA 679 ¶ 35). Rall submitted at least 300 cartoons and
150 blog posts during his employment with the Times. (3AA 679

8 There is some dispute as to whether Rall was an employee or a
contractor. After the defamatory publication by the Times
announcing the firing of Rall, the Times retroactively changed
Rall’s status to “freelance cartoonist” at
http://www.latimes.com/la-bio-ted-rall-staff.html (1AA 66).
However, Rall’s declaration indicates he was hired as a staff
cartoonist. (3AA 680 ¶ 10). The Times’ website listed Rall
prominently as a staff cartoonist and not a freelancer. (3AA 681-
82 ¶ 25). The distinction has importance as set forth in Part
III(C) below. The Times attempt to recast and minimize Rall’s
employment status is not coincidental.
9The Times cut Rall’s pay to $200 in 2011. (3AA 682 ¶ 32). In
2013 they began paying him $100 for the accompanying blog as
well. (3AA 683 ¶ 35).

29
¶ 36). Throughout his tenure, Rall was a frequent critic of the
LAPD in his cartoons and blog posts. (3AA 680 ¶ 39).

B. The October 3, 2001 Detention of Rall by the LAPD
for Jaywalking
On the evening of October 3, 2001, Rall had walked across
the street, lawfully on the Walk signal and within the crosswalk,
when he was detained by an LAPD motorcycle officer, Willie
Durr. (3AA 681-82 ¶¶ 48-49). Rall felt intimidated and was
compliant. (3AA 682 ¶¶ 49-50). Without provocation or
explanation, Durr grabbed Rall’s shoulder, spun Rall around,
threw Rall against the wall and handcuffed Rall. (3AA 686 ¶ 50).
People walking by asked Durr why he handcuffed Rall and
asked that Rall be freed. (3AA 686 ¶ 51; 707 ¶ 182). A crowd of
people watched Rall’s detention. (3AA 686 ¶ 51). A second officer
arrived at the scene and directed Durr to release Rall. (3AA 687 ¶
52). Durr complied but issued Rall a ticket for jaywalking. (3AA
687 ¶52). Durr tossed Rall’s driver’s license into the gutter. (3AA
687 ¶ 52). Later that same evening, Rall told his friends about
the detention and Officer Durr’s actions. (3AA 687 ¶ 52; 731 ¶ 4).

C. Rall’s Complaint and the LAPD’s Purported
Investigation
Rall filed a complaint with the LAPD. (3AA 687 ¶ 54). Rall
made multiple inquiries of the LAPD about the status of his
complaint. (3AA 687 ¶ 55). Rall never heard back from the LAPD.
(3AA 687 ¶ 55). An Internal Affairs investigator had apparently
tried to contact Rall by leaving a message, but it is an obviously
wrong number. (3AA 687 ¶ 56). Whoever’s answering machine

30
the LAPD called had, unlike Rall, a noticeably strong non-native-
English-speaking accent. (3AA 687 ¶ 56).

D. Rall’s May 11, 2015 Blog Post about the LAPD’s
Crackdown on Jaywalking
In May 2015, Rall learned that the LAPD had announced a
crackdown on jaywalking. (3AA 688 ¶ 58). The Times had
reported on the disparate impact of jaywalking fines on the poor
and working class and the confusion over cross-walk signs. (3AA
688 ¶ 58). Rall wrote a blog post about the LAPD jaywalking
policy. (3AA 688 ¶ 59). The post included Rall’s account of his
2001 detention for jaywalking. (3AA 688 ¶ 59). The blog was
submitted to his editor, Cherry Gee who, in turn, edited and
approved it before it was published. (3AA 688 ¶¶ 59-60).

E. The Times’ Rushed “Investigation” Based on an
Unintelligible Audio File of Rall’s 2001 Detention
In July 2015, unbeknownst to Rall, a secret meeting
occurred at the Times. (1AA 231 ¶¶ 3-4). In the Anti-SLAPP
proceedings below, the Times claimed that a representative of the
LAPD supplied the Times with materials about Rall and the 2001
detention. (1AA 231 ¶ 4). Whether any materials were supplied
and what materials were supplied by the LAPD was disputed
below. One declarant stated that according to an official LAPD
spokesman, no LAPD records about Rall were ever released by
the LAPD to the Times. (3AA 728). Hence, the source of these
documents remains unknown. Rall was not invited to participate
in the LAPD-Times meeting or directly respond to his accusers
from the LAPD. (1AA 231 ¶¶ 3-4).

31
On Thursday, July 23, 2015, Times reporter Pringle
telephoned Rall. (3AA 689 ¶ 68). Rall had at that time never met
or heard of Pringle. (3AA 689 ¶ 69). Pringle advised Rall that the
LAPD questioned the veracity of Rall’s blog post. (3AA 690 ¶ 70).
Rall answered all of Pringle’s questions thoroughly. (3AA 690-91
¶¶ 70-84). During this 2015 questioning by Pringle, Rall learned
for the first time that Officer Durr had furtively recorded his
arrest. (3AA 690 ¶¶ 77-78). It was only after Pringle ambushed
Rall with his questions, that Pringle eventually provided Rall a
digital copy of the audio. (3AA 693 ¶ 103). That audio was of
extremely poor quality. (3AA 693-94 ¶ 106). No original audio
media (i.e. the microcassette tape from 2001) has ever been
produced. (1AA 272 ¶¶ 11-12). This is significant in that the
Times’ standard procedure for authenticating audio is to insist
that original audio media be provided. (3AA 719 ¶ 240).
The same day that Rall was ambushed by Pringle, he
received an email from Times editor Nicolas Goldberg. (3AA 691
¶ 81). Goldberg repeated many of the questions Pringle had for
Rall. (3AA 691-92 ¶¶ 87-95). The following day, Goldberg emailed
Rall that the Times was going to think about “this stuff” over the
weekend. (3AA 695 ¶ 119).10

10In the interim, while the Times was purportedly “thinking,” in
reality it had already made its decision. Rall had submitted a
cartoon to the Times on Friday July 24, 2015 for the Monday July
27, 2015 edition of the Times but it was not published. (3AA 698
¶ 135). The printing deadline for Monday’s paper was Friday,
July 24, 2015 at noon. (3AA 698 ¶ 135). Hence, any decision by
the Times to discontinue Rall’s work was made by noon on
Friday, July 24, 2015.

32
On July 27, 2015, Rall called the Times’ Deputy Op-Ed
editor Brenneman. (3AA 695 ¶ 122). Brenneman was one of Rall’s
direct supervisors and filled in for Gee when she was absent.
(3AA 681 ¶ 24). Brenneman had heard rumors in the newsroom
about Rall and the Times’ investigation. However, she had not
been brought in by the Times to assist or provide input into the
decision to fire Rall. (3AA 695-96 ¶ 122). The Editorial Board had
not met to discuss Rall. (3AA 695-96 ¶ 122). Rall was not invited
to address the Editorial Board. Any investigation into Rall was
being conducted by the Times in violation of the Times’ standard
operating procedure. (3AA 695-96 ¶ 122). If Goldberg’s July 24,
2015 email was true and that the Times was going to think about
“this stuff,” that process did not involve Gee, Brenneman or the
Times’ Editorial Board. (3AA 695-96 ¶ 122).

F. The Times’ Firing of Rall
On Monday July 27, 2015, Goldberg called Rall and
informed him that he was fired. (3AA 696 ¶ 125). One business
day had passed since Rall had given his side of the story to
Pringle and Goldberg. (3AA 689 ¶ 68). Goldberg told Rall the
Times would no longer publish his work. (3AA 696 ¶ 125). Worse,
Goldberg told Rall that the Times would be publishing an
“Editor’s Note” describing alleged discrepancies between Rall’s
account of his 2001 detention and the contents of the audio file.
(3AA 696 ¶ 125). At the time of his firing, Rall had not had any
face-to-face conversations with his immediate supervisors. (3AA
695-96 ¶ 122). Nor was he allowed to explain his position to the
Times’ Editorial Board. (3AA 695-96 ¶ 122).
The LAPD’s Protective League published a blog post
celebrating Rall’s firing: “The LAPPL applauds L.A. Times firing

33
of cartoonist Ted Rall.” (3AA 700 ¶ 147). Thereafter, several
media outlets published accounts of Rall’s firing for dishonesty.
(3AA 701 ¶¶ 150 – 167).

G. The Times’ July 28, 2015 Defamatory Publication
about Rall’s Termination in the Note to Readers
On July 28, 2015, the Times published a “Note to Readers”
(the “Note”)11 about Rall’s firing. (16AA 4927). The Note included
the following statements:
➢ That the Times possessed an audiotape of Rall’s 2001
detention by the LAPD for jaywalking, when in fact they
did not possess the original microcassette. (16AA 4927).
➢ That the digital copy of the 2001 audio recording does not
“back up” Rall’s account of physical violence, or that Rall’s
license was thrown in the gutter, that he was handcuffed or
any shouting onlookers observing Rall’s detention. In fact,
the original unenhanced audio reveals a crowd of angry
voices and the enhanced audio reveals comments critical of
the handcuffing of Rall. No microcassette recording could
pick up the sound of a driver’s license being thrown in a
gutter short of the microcassette being situated in the
gutter, at the point of impact, when the license landed.
➢ That the 2001 audiotape depicts a “polite interaction”
between Rall and Officer Durr. The Note does not add that
Durr’s vocal tone is snide and sarcastic and that he
whistles close to the microphone in order to mask any other
audio.

11For the Court’s convenience, a complete copy of the Note is
attached to this brief at page 94.

34
➢ That the LAPD made repeated unsuccessful attempts to
contact Rall. The Note does not add that the outgoing
greeting on the answering machine the LAPD called sounds
nothing like Rall.
➢ That when the Times asked Rall about inconsistencies
between the recording and Rall’s account “Rall said he
stands by his blog post.”
➢ That the recording “and other evidence provided by the
LAPD raised serious questions about the accuracy of Rall’s
blog post. Based on this, [Rall’s May 11, 2015 blog post]
should not have been published.” Rall’s work will no longer
appear in the Times because the Times is a “trusted source
of news because of the quality and integrity of the work its
journalists do.”
The Note’s clear message was that Rall has committed the
greatest sin in journalism: fabrication.

H. Rall’s August 2, 2015 Presentation to the Times of
Enhanced Audio and Rall’s Demand for a
Retraction
Rall had the audio recording of the 2001 detention
enhanced on August 2, 2015. (3AA 706 ¶¶ 178-180). The
enhanced audio depicts:
A woman’s voice asking, “Why’d you handcuff him?” and
“So he’s detaining him?” (3AA 706 ¶ 182). A second voice
observes: “He was just jaywalking. You need to take off. . . no

35
take off his handcuffs.” (3AA 706 ¶ 182). Other voices on the
audio depict12 a crowd around Rall’s detention. (3AA 706 ¶ 182).
Rall provided the enhanced audio to the Times on August 3,
2015, demanded a retraction and apology. (3AA 708 ¶ 185). One
week later, the Times responded with a four-sentence letter from
its attorney indicating that the Times had reviewed all
information available to it and found nothing warranted a change
in the Note or a retraction. (3AA 711 ¶ 200; 12AA 3564).

I. The Times’ August 19, 2015 Publication of a
Defamatory Article about Rall
On August 19, 2015, following weeks of controversy in the
national and international press as well as social media, the
Times doubled-down on its Note. They published an article
entitled “Times reaffirms decision that Ted Rall’s blog post did
not meet its standards” (the “Article.”)13 (17AA 5310). The Times
summarized its investigation into the accuracy of Rall’s account
but concluded it could not hear what Rall heard on the audio.
(17AA 5311). The Times describes the other voices on the audio
as “unintelligible” yet states that those other voices are not
talking about jaywalking. (17AA 5317).
The Times also repeated the LAPD’s claim that the LAPD
had contacted Rall to investigate his complaint but Rall had

12Although the enhanced audio revealed the content of these
comments, the presence of an angry crowd and the sound of the
crowd’s voices was discernable from the unenhanced audio the
Times possessed before Rall’s firing. (3AA 694 ¶ 106; 700 ¶ 145;
12AA 3731).
13For the Court’s convenience, a complete copy of the Article is
attached to this brief at page 96.

36
never called the LAPD back. (17AA 5313). The LAPD provided
the Times with another audio file – this time a recording of an
LAPD investigator leaving a message on someone’s answering
machine. (17AA 5313). The audio recorded the LAPD’s message
as well as the outgoing “leave a message” greeting by the owner
of the answering machine. (17AA 5313). Any person at the Times
listening to that recording and the outgoing message would have
recognized the voice on the message as not Rall’s. (3AA 687 ¶ 56).
The outgoing “leave a message” voice had a heavy South Asian
accent. (3AA 687 ¶ 56). Rall has no such accent. (3AA 687 ¶ 56).
The Times noted that Rall had accused the LAPD of
splicing or editing the audio but that the LAPD denied this
occurred. (17AA 5317). The Article did not claim that the Times
attempted to have the audio authenticated. (Similar to how a
firearms forensic expert can determine whether a bullet was fired
by a particular weapon by examining both the slug and the gun
that shot it, an audio forensics expert can determine whether an
audio recording was unaltered or edited by examining the
original medium and the device that was used to record it.
Furthermore, authentication requires that the chain of evidence
for the audio recording and the device be clearly established.) Nor
did the Times disclose that its own audio expert, Ed Primeau,
indicated that the quality of the audio provided by the LAPD to
the Times was so poor that he almost did not accept the
assignment from the Times to review the audio. (3AA 744 ¶ 6).
Primeau took the assignment only because the Times was a client
of his. (3AA 744 ¶ 6). The unknown person at the Times who
supplied Primeau the audio told him that the Times could not
determine where the original media was or if it still existed. (3AA
744 ¶ 6).

37
The August 19, 2015 article concludes that “in light of all
the available information, The Times stands by its [July 28, 2015
Note] to readers and its judgment that Rall’s May 11 blog post
should not have been published.” (17AA 5317).

J. Rall’s Damages
The damage to Rall’s career was irreparable. (3AA 716-17
¶¶ 229-236). Rall’s longstanding relationships with newspapers
and cartoonist colleagues were destroyed. (3AA 716-17 ¶¶ 220-
236). Rall suffered physical and mental harm. (3AA 717-18 ¶
236). He did not know how he would provide for his family. (3AA
697 ¶ 128).

38
ARGUMENT
I. Summary of Argument
The trial court’s primary error was concluding that because
the Times is in the business of reporting the news, its decision to
fire Rall is necessarily protected by the First Amendment and
Rall’s complaint is subject to the Anti-SLAPP statute. That
conclusion is wrong. The Times is an employer like any other
employer. Although it publishes the news, when the Times fires a
longtime employee, its human resource actions are not ipso facto
protected by the First Amendment.
Even if the trial court was correct in applying the Anti-
SLAPP law to this dispute, it erred in concluding that Rall had
not demonstrated a likelihood of prevailing on the merits. The
Times conducted a flimsy chimera of an investigation into Rall
before it fired him and published its Note. Thereafter, when
presented with the enhanced audio confirming Rall’s account of
being strong-armed and handcuffed by the LAPD, the Times
refused to retract. And while the Times relies on the fair and
accurate reporting privilege as a defense below, the trial court
erred in finding that it applies here. The Times was reporting on
its own investigation rather than the LAPD’s investigation. And
by the express terms of Civil Code section 47(d), the privilege
does not apply when the Times discloses confidential information.
Finally, the application of that privilege is a question of fact for
the jury and rests on predicate facts that the Times cannot and
did not establish.
The order granting the Anti-SLAPP motion should be
reversed.

39
II. The Order Granting the Anti-SLAPP Motion Should
be Reversed Because the Employment Causes of
Action Alleged by Rall did not Arise from Activity
Protected by the First Amendment
California’s Anti-SLAPP law applies to lawsuits arising
from statements made in official proceedings. (Code Civ. Proc., §
425.16, subd.(e)(1)). No such proceeding was involved here. The
proof below was insufficient to establish that the LAPD’s
purported investigation of Rall’s detention rose to the formality
required to constitute an “official proceeding” within the meaning
of Section 425.16.
California’s Anti-SLAPP law also applies to “other conduct”
in furtherance of free speech rights. (Code Civ. Proc. § 425.16,
subd.(e)(4)). This “catch all” category of protected activity applies
only to conduct in furtherance of the constitutional right of free
speech in connection with either a public issue or issue of public
interest. (Code Civ. Proc. § 425.16, subd.(e)(4); Hailstone v.
Martinez (2008) 169 Cal.App.4th 728, 736). A defendant may not
create a defense by making the plaintiff a public figure simply by
communicating to a large number of people. (Ibid.)

A. The Anti-SLAPP Law Does not Apply to Rall’s
Employment Claims Based on the California
Supreme Court’s Decision in Park
The Times’ amended brief in support of the Anti-SLAPP
motion was filed June 6, 2017 and the amended reply brief was
filed June 21, 2017. (18AA 5780, 5887). These dates are
important because on May 4, 2017 the Supreme Court of
California decided one of its most important Anti-SLAPP cases,

40
Park. Shockingly, neither party brought Park to the attention of
the trial court.
Park held that in the context of employment litigation, an
Anti-SLAPP motion is inapplicable if the employment decision, as
opposed to the evidence of that decision that might be spoken or
written, is not in itself protected activity. (Park, at 1060-61). This
is precisely the case here – the employment termination claims
here do not “arise from” protected activity.
For some time, California appellate courts have been
concerned that abusive Anti-SLAPP motions were being filed by
employers to oppress employees who had been victimized by
discrimination or retaliation. As Park held, quoting with approval
from Nam v. Regents of University of California (2016) 1
Cal.App.5th 1176, 1189:

Any employer who initiates an investigation of an
employee, whether for lawful or unlawful motives,
would be at liberty to claim that its conduct was
protected and thereby shift the burden of proof to the
employee who, without the benefit of discovery and
with the threat of attorney fees looming, would be
obligated to demonstrate the likelihood of prevailing
on the merits.

(Id. at 1066-67).

Park determines the outcome of Rall’s employment claims
against the Times, and if it had been briefed and argued below,
the Anti-SLAPP motion as to those claims might well have been
denied for failure to satisfy the first prong. The Times’ counsel

41
had an obligation to inform the trial court about Park,
particularly since Park not only clarified the law in Rall’s favor, it
specifically disapproved of cases that led to a contrary result,
such as Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257.
(Park, at 1071). Tuszynska was relied upon by the Times at three
places in their amended memorandum of points and authorities,
filed a month after the Park opinion was filed. (18AA 5818, 5868,
5871).
The Park court did not take a position on the continuing
viability of Hunter v. CBS Broadcasting Inc. (2013) 221
Cal.App.4th 1510 (“Nor do we express any opinion concerning
whether Hunter . . .itself was correctly decided.”) Hunter is the
primary holding relied upon by the Times and relied upon by the
trial court in granting the Anti-SLAPP motion.
Anyone reading the opinion in Park would have to conclude
that the holding in Hunter is now seriously in doubt, or at the
least, narrowed. The primary case relied upon by Hunter was
Tuszynska v. Cunningham, supra, 199 Cal.App.4th, now
disapproved by the Supreme Court. The Hunter court found that
the facts in Hunter “cannot be meaningfully distinguished from”
those in Tuszynska. (Hunter, at 1523).
What is left of Hunter after Park? Is there a “carve out” of
the contours of the Park holding for all defendants whose very
business is generally protected by the First Amendment? In Park
the university defendant suggested that the very by-product of
higher education, First Amendment-protected academic freedom,
would be impaired by intrusion into the tenure-granting process.
The Park Court did not buy it:

42
[T]he University would have had to explain how the
choice of faculty involved conduct in furtherance of
University speech on an identifiable matter of public
interest. But the University has not developed or
preserved any such argument before us. It has not
explained what University expressions on matters of
public interest the retention or nonretention of this
faculty member might further, nor has it discussed the
circumstances in which a court ought to attribute the
speech of an individual faculty member to the
institution with which he or she is affiliated.

(Park, at 1072).

The Times is an institution like a university that benefits
from broad First Amendment protections. But even if its editors
direct cartoonists to address matters of public interest, that alone
is not sufficient protected activity to meet the requirements of
Section 425.16(e)(4). If Hunter survives Park, it is only because
CBS could demonstrate that its choice of its on-air weather
broadcaster, admittedly a local celebrity, directly and severely
impacts its very business — the size of the news audience
depends on that choice — and involves a myriad of subjective
elements such as “likeability”14 which are impossible to quantify.

14Putting the word “likeability” in the same sentence as “political
cartoonist” might seem to be oxymoronic. This case can be
summarized in one sentence: The Times hired Rall to speak truth
to power, and when he did his job too well, they fired him.

43
If Hunter survives Park, it will be because its unique factual
context makes it sui generis, a first cousin of unsuccessful
challenges to casting decisions that threaten to intrude upon a
producer’s protected creative vision for the work.15
The decision in Hunter focused on the protected activity
language of Section 425.16(e)(4) “in furtherance of the right of
free speech,” as opposed to “in connection with a public issue or
issue of public interest.” It was assumed by both parties that the
choice of on-air weather broadcaster was an issue of public
interest. Looking carefully at the facts here, however, permits a
telling distinction from Hunter. The Times’ employment decision
was simply not in connection with a public issue or issue of public
interest. Rall’s blog was published May 11, 2015. There was no
known response to the blog by anyone — no commentary, no
letters to the editor, no internal questioning. More than two
months went by. A third party approached the Times with an
allegation of falsity or exaggeration. At that point in time the
blog was old news, not even fit, like a discarded newspaper, for
wrapping fish. It was in the ether. Nevertheless, the Times
decided to address the allegations brought to them. At this point

15See Claybrooks v. ABC Inc. (M.D.Tenn. 2012) 898 F. Supp.2d
986, in which African-American plaintiffs failed in their racial
discrimination claims against the producers of the very white
Bachelor and Bachelorette reality TV shows. The same cannot be
said for the lowest paid journalist on the Times’ staff, the political
cartoonist toiling in obscurity whose work appears once a week.
Lest there be any doubt, the Justices reading this brief should
strive to identify three newspaper staff editorial cartoonists
working in the United States today. A difficult task. They work in
obscurity.

44
the issue was entirely a private employment matter between the
Times and one of its employees. The subject matter of the blog
and cartoon was unquestionably related to a public issue, but the
internal investigation and firing decision was less an exercise of
free speech on an issue of public importance than a private effort
to evaluate an employee. Of course, some readers might be
curious about internal investigations of allegations of
exaggeration, but curiosity does not equate to public interest.
(Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-33).
Focusing on the non-public aspects of the Times’ firing
decision brings this case squarely within the ambit of Park, and
far from the world of on-air casting in Hunter. The Times cannot
meet their burden under the first prong of the Anti-SLAPP
statute.

B. The Anti-SLAPP Law Does not Apply to Rall’s
Employment Claims based on Division One’s
Decision in Wilson v. CNN
The analysis by Justice Lui in Wilson,16 represents the
closest precedent to this case. Wilson was an off-air writer and
producer for CNN who was accused of plagiarism and fired. Like

16 The Times is desperate for this Court not to consider Wilson.
The Times urged the court below that because a petition for
review had been granted the case should not be considered.
(18AA 5848). The Times’ counsel failed to inform the trial court
that in Wilson the Times had sought and failed to have the Court
of Appeal opinion depublished. (RFJN 2). The Wilson opinion can
be cited and relied on as persuasive authority. (Cal. Rules of
Court, Rule 8.1105 (e)(1)(b).) The more so now that Park
vindicates the essence of Wilson.

45
Rall, he was an at-will employee working without a written
contract. Wilson is an African-American, over 40, who had
complained over the years that he was being passed over in favor
of younger, less-experienced Caucasian employees. He alleged
employment discrimination, retaliation, wrongful termination in
violation of public policy, and defamation. He alleged that the
plagiarism charge was a pretext to cover up discrimination and
retaliation. An Anti-SLAPP motion was filed by CNN and
granted. The Court of Appeal reversed and zeroed in on
Subdivision (e)(4) of Section 425.16:

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.

(Code Civ. Proc. § 425.16, subd.(e)(4)).

The Wilson court anticipated the holding in Park:

The trial court must “distinguish between (1) speech
or petitioning activity that is mere evidence related to
liability and (2) liability that is based on speech or
petitioning activity. Prelitigation communications…
may provide evidentiary support for the complaint
without being a basis of liability. The mere fact that
an action was filed after protected activity took place
does not mean the action arose from that activity for
the purpose of the Anti-SLAPP statute. Moreover, that
a cause of action arguably may have been ‘triggered’

46
by protected activity does not entail that it is arising
from such.

(Wilson, at 832 [cleaned up].)

The Wilson court acknowledged that the plaintiff operated
in a world of First Amendment-protected activity, but held that
“the discrimination and retaliation he has alleged are not acts in
furtherance of defendants’ free speech rights.” (Id. at 834).

Further, we reject defendants’ characterization of
their allegedly discriminatory and retaliatory conduct
as mere ‘staffing decisions’ in furtherance of their free
speech rights to determine who shapes the way they
present news. The press has no special immunity from
generally applicable laws.

(Wilson, at 836 [cleaned up].)

Because Wilson’s discrimination claims were neither based
on acts in furtherance of CNN’s right of petition or free speech,
nor matters of public interest, the Times never met the first
prong burden. Wilson cannot be distinguished from this case. To
allege that Rall is a celebrity like a weather broadcaster on
television (because he signs his cartoons, said the court below!)
and therefore anything he does is of public interest, or that the
Times cannot be held accountable for wrongful treatment of its

47
employees because they have a right to publish only what they
choose to publish, is an absurdity.17 As Wilson held:

The record does not show that plaintiff was a person
in the public eye. He was a producer and Web article
writer, not a reporter appearing on camera.

(Id. at 837).

Contrast Wilson with the trial court’s holding below on this
first prong issue:

Defendants argue that they have the right to control
the content of the editorial page and of opinion pieces,
which is protected under the First Amendment. None
of the acts allegedly committed by defendants would
have occurred but for that decision. Sheley v. Harrop
(2017) 9 Cal.App.5th 1147, 1157. The decision not to
publish plaintiff’s cartoons or blogs are [sic] the reason
he alleges a termination of his employment occurred,
the reason he claims he suffered emotional distress,
the reason other potential employers would be
unwilling to hire him. This analysis does not required
[sic] a determination whether plaintiff was an
employee or an independent contractor.

(18AA 5927).

17Even cartoonists whose work is widely circulated are not
usually considered celebrities. “Pearls Before Swine” and
“Garfield” are among the most widely syndicated comic strips in
the world, yet few readers could identify their creators.

48
Of course, the trial court had it exactly backwards. The
cessation of publication is the result of the wrongful termination,
not the other way around. As Wilson and many courts have held,
the media does not get a free pass from general laws protecting
employee rights.

III. The Order Granting the Anti-SLAPP Motion Should
be Reversed Because Rall Established a Reasonable
Probability of Prevailing on the Merits
As set forth in Part II above, the trial court erred in
concluding that the Times had satisfied the first prong of the
Anti-SLAPP law as to the employment claims. As such, the Court
may properly end its review at the first prong and need not
examine the merits of the Times’ defenses. (Gerbosi v. Gaims,
Weil, West & Epstein, LLP, supra, 193 Cal.App.4th at 445).
Should the Court reach the second prong of the SLAPP analysis,
Rall met it.
Rall’s burden below was to establish that his claims were
sufficiently pled and supported by a prima facia showing of facts
sufficient to support a verdict if believed. (Navellier v. Sletten
(2002) 29 Cal.4th 82, 89). Only a claim that “lacks even minimal
merit” is subject to dismissal. (Ibid.) When Rall’s evidence is
viewed through this minimal-merit standard, Rall easily
established a probability of prevailing on his employment and
defamation claims.

A. Summary of Rall’s Employment Claims
Rall’s employment termination argument is dramatic. He
produced a cartoon and a blog that were critical of the LAPD.
(3AA 688). The blog contained a personal anecdote by Rall in

49
which he says that, 14 years earlier, he was wrongly arrested for
jaywalking and roughed up by the arresting officer. (3AA 688).
He had filed a formal complaint, but it got nowhere. (3AA 687).
The police chief, Charlie Beck, was not happy with the cartoon
and the blog. (3AA 718). Two months after the blog’s publication,
Beck came to the Times to complain, met with the publisher and
illegally provided excerpts from Rall’s confidential complaint file.
(1AA 231). The file contained false and misleading recordings.
(3AA 707, 687). Perhaps because the publisher had been
honored18 by the police and was politically ambitious, or because
the police retirement fund held a stake in the largest shareholder
of the Times, the publisher bypassed normal procedural
safeguards for employees and fired Rall without anyone meeting
with him face to face or interviewing Rall’s immediate superiors.
(3AA 698 ¶ 133; 713 ¶ 214).
The publisher assigned a reporter to “investigate” the
allegations. (3AA 689-90). The decision to fire Rall occurred
within 24 hours of Rall’s phone call with the reporter. (3AA 698 ¶
136). It is not known what was said in the meeting between the
publisher and Chief Beck. It is not known whether the Chief went
through proper protocol to obtain the release of a confidential file
or where the file actually came from. It is not known whether
anyone at the Times, other than Rall, expressed skepticism about
the bona fides of the two misleading recordings, or why the Times
ignored an enhanced recording that vindicated Rall’s account, or

18The publisher should never have accepted any honor from the
LAPD. It violated the Times’ ethical guidelines. Those guidelines
preclude any “activity, relationship, investment or affiliation that
reasonably could be perceived as affecting” judgment or creating
a bias. (12AA 3724.)

50
why the Times ignored Rall’s offer to undergo a polygraph
examination at his own expense. Twice in the court below Rall
moved for discovery and twice he was rebuffed. This is a case of
retaliation by proxy. Rall’s original complaint to the LAPD was
absolutely privileged by Civil Code, section 47(b) and his file was
confidential. There was nothing the LAPD could do to harm Rall
directly; so they called in a favor and had the Times fire him.
Eventually the Times chose to explain its firing decision in
two false and defamatory articles, accusing Rall’s blog of being
factually unsupportable. Those articles give rise to the
defamation claims, what defendants have labeled the “content”
claims. Here we focus only on the employment termination
claims.

B. The Result Below Would Establish an Absolute
Privilege for Media Defendants to Discriminate
against Employees who Produce Content
The Times convinced the trial court to label the
employment termination claims the “publication” claims and
describe the employment termination as simply a decision not to
publish additional work by Rall. That way, the Times could
assert that the only legal issue here is Rall’s attempt to force a
newspaper to publish material they would not ordinarily publish.
Of course, the First Amendment prohibits that kind of intrusion
upon editorial choice. (Miami Herald v. Tornillo, supra, 418 U.S.
241).
The Times asserts an absolute privilege; it says that a
media defendant can fire any employee for any discriminatory or
retaliatory reason, so long as that employee participates in
content that is published. For example, if a Times columnist were

51
sexually harassed by an editor, denied assignments because she
rejected sexual advances, and then was fired because she
complained to HR, she could not sue because, according to the
Times and the court below, Tornillo creates an absolute privilege
to discriminate and/or retaliate. The Times simply chooses not to
publish her column anymore! This example demonstrates the
fallacy in the holding below. The issue is not one of right but of
remedy.
Employees have a right not to suffer discrimination or
retaliation, and the Times has a parallel right not to publish. The
remedy has to balance both rights. The columnist in the above
example has a right to reinstatement and/or damages; the Times
simply retains the right not to publish her column. (See Hausch
v. Donrey of Nevada Inc. d/b/a Las Vegas Review-Journal
(D.Nev.1993) 833 F. Supp. 822 [holding that First Amendment
did not bar sex discrimination claim, or reinstatement, of editor].)
The Hausch court noted:

Defendants have not alleged or demonstrated that
there is any relationship between their ability to
choose their Editor on the basis of sex, race, or any of
the other characteristics prohibited by Title VII, and
their ability to control the content and character of
their newspaper’s message.

(Id. at 829).

The distinction between right and remedy was missed by
the court below, no doubt because the defendants failed to point
out the relevant case law. The seminal U.S. Supreme Court case

52
in Associated Press v. Labor Board (1937) 301 U.S. 103 requires a
balancing between the rights of a victimized journalist/employee
and the First Amendment rights of the newspaper, with only the
appropriate remedy being the issue. In Associated Press, the
employee was pretextually fired for bias and partiality in his
news reporting, but the real reason was his agitation for
collective bargaining. Here, Rall was pretextually fired for
fabrication, but actually it was in retaliation for offending the
police chief.
Associated Press has been routinely followed in
contemporary cases, and Tornillo has been routinely
distinguished. See, e.g., Passaic Daily News v. NLRB
(D.C.Cir.1984) 736 F.2d 1543, requiring an NLRB reinstatement
order to be modified so as not to intrude on the publication rights
of the newspaper, even though the plaintiff columnist would be
reinstated after a finding that he had been discriminated against
for union activity. The revised NLRB order, accepted by all
parties, read: “Restore Mitchell Stoddard immediately to the
column-writing duties he enjoyed prior to his demotion, and
decide whether to publish his submissions based on any factors
other than his union or protected activity; provided that nothing
in this Order shall be interpreted as a requirement that the
Respondent publish any of the columns submitted by Stoddard.”
(Herald News (1985) 276 NLRB 605, 606).
In this case, a fortiori, Rall is not suing for reinstatement or
continued publication; he is only seeking damages for wrongful
termination. There is no need to balance the remedy as required
by Associated Press and its progeny. (See Jordan-Benel v.
Universal Studios Inc. et al. (9th Cir. 2017) 859 F.3d 1184
[holding that screenwriter’s claim over theft of movie idea is

53
claim for compensation and does not arise out of protected
activity].)

C. Rall Established a Probability of Prevailing on the
Merits that he was Wrongfully Terminated in
Violation of Public Policy

1. Although the Threshold Question is Whether Rall
was the Times’ Employee or Independent Contractor,
the Trial Court Below Refused to Analyze Rall’s
Employment Status
The parties vigorously litigated the issue of employee
versus independent contractor. Employee status confers
significant rights on any wrongfully terminated worker. The
court below held that its analysis “does not required [sic] a
determination whether plaintiff was an employee or independent
contractor.” (18AA 5927). This is in error. Any assessment of
whether Rall established a probability of prevailing on his
employment claims necessarily requires a determination of
whether he was an employee or contractor.

2. Rall was an Employee not a Contractor

a. Rall is Presumed to be an Employee until Proven
Otherwise
Rall declared in opposition to the Anti-SLAPP motions that
he was an employee who worked for six years as the L.A. Times’
political cartoonist. (18AA 680, 696). That declaration created a
presumption that Rall was an employee. (Narayan v. EGL Inc.
(9th Cir. 2010) 616 F.3d 895, 900). Even absent Rall’s declaration,
the Legislature has enacted a statutory presumption that

54
workers such as Rall are employees. (Lab. Codes §§ 2750.5, 3357).
“The Act must be liberally construed to extend benefits to persons
injured in their employment.” (Lab. Code, § 3202).

b. Determining Rall’s Employment Status is a Jury
Question
At this early stage of the case, the Times’ burden to rebut
Rall’s employee status simply has not been met, particularly
when it is clear that Rall, through his long and indefinite length
of employment, and the control over his product exercised by his
supervisors at the Times, has demonstrated key indicia of
employee status.
California law leans heavily towards viewing Rall as an
employee. See, e.g., S.G. Borello & Sons, Inc. v. Department of
Industrial Relations (1989) 48 Cal.3d 341 (cucumber harvesters
employees, not independent contractors). Most cases considering
the issue involve unskilled workers such as truck drivers,
agricultural “pickers” or delivery personnel. But in Tieberg v.
Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, the California
Supreme Court addressed the status of writers who provided
scripts for the Lassie TV show on a free-lance basis. The facts are
strikingly similar to Rall’s proffered modus operandi:

[The writer’s] first draft would be submitted to the
story editor or another person in the employ of Lassie
and frequently would be reviewed by other members
of Lassie’s staff as well. Changes in the script were
almost invariably required and Lassie would generally
call the writer into the studio for purposes of
discussing these changes. The desires, suggestions,

55
requests and directions of Lassie’s staff were in effect
commands which had to be and were complied with by
the writers if they could not convince Lassie that its
suggested changes were inappropriate. . ..

(Id. at 948).

Rall’s description of his process of submitting ideas to his
editors and being bound to make their changes is identical to the
process in Lassie. (3AA 681 ¶ 17-20; 3AA 685 ¶ 43).
One of the only other cases determining employee vs.
independent contractor status in the realm of the creative arts, is
Ali v. L.A. Focus Publication et al. (2003) 112 Cal.App.4th 1477.19
Ali held that a free-lance “community affairs columnist” who was
paid for each the article, received a 1099 for the work, and held a
community job elsewhere, was nevertheless able to defeat
summary judgment by showing a factual dispute, inter alia, on
the issue of editorial control. The Ali court held: “Because it is
possible on this record for a reasonable trier of fact to find, more
likely than not, that Ali was an employee, the court’s resolution
of this issue as a matter of law was error.” (Id. at 1486).
As in Tieberg and Ali, determining Rall’s status here is a
question for the finder of fact, see CACI No. 3704 (2017) (“control
factor” most important indicium of employee status). For
purposes of this appeal it is sufficient to hold that Rall’s
employment status is a matter of fact to be determined by the
finder of fact, with the burden on the Times to disprove employee

19Ali was disapproved on other grounds by Reid v. Google,
Inc. (2010) 50 Cal.4th 512, 532 fn. 7.

56
status at trial. For consideration of Rall’s employment
termination claims, Rall has to be assumed to be an employee.

c. Rall Pled and Proved a Prima Facia Cause of Action
for Wrongful Termination in Violation of Public
Policy
A legal researcher would have to look long and hard to find
a fact pattern in prior cases similar to the “retaliation by proxy”
conduct here. Amazingly, there is one case right on point — Ali v.
L.A. Focus Publication et al., supra, 112 Cal.App.4th. In Ali, as
mentioned above, plaintiff was the community affairs columnist
of a local L.A. monthly newspaper. “On June 2, 2001, while a
guest on a local radio show, Ali voiced his personal support for
Antonio Villaraigosa, a candidate in the June 2001 Los Angeles
mayoral election, and criticized United States Representative
Maxine Waters for supporting Villaraigosa’s opponent (and
current Los Angeles mayor) James Hahn. According to Ali,
Waters was upset at Ali’s public criticism of her on the radio
show and successfully prevailed on Busby [owner of L.A. Focus],
her friend of 10 years, to terminate Ali’s employment.” (Id.)
Retaliation by proxy! Busby telephoned Ali to tell him he was
being fired because Waters was upset. Unable to “take the
political heat,” Busby said he had no choice. (Id. at 1483).
Perhaps former Times Publisher Austin Beutner will use the
same description when his testimony is taken.
Ali sued for wrongful termination in violation of public
policy. As discussed above, the court first determined the
threshold issue of employee vs independent contractor. Turning
to the merits, the court first dismissed the paper’s argument that

57
Ali was rightly fired for violating the editorial policy of L.A.
Focus.
Ali described the appropriate standard to prevail for
wrongful termination in violation of public policy. The fired
employee must identify a public policy that is:

both “substantial” and “fundamental” and rooted in
constitutional or statutory law. The policy,
furthermore, must be “‘public’ in the sense that in
inures to the benefit of the public’” rather than to the
purely personal or proprietary interest of the plaintiff
or the employer, and articulated or well established at
the time of discharge.

(Id. at 1487).

The Ali court found employee protection for political
activity in Labor Codes sections 1101 and 1102. The latter
statute reads:

No employer shall coerce or influence or attempt to
coerce or influence his employees through or by means
of threat of discharge or loss of employment to adopt
or follow or refrain from adopting or following any
particular course or line of political action or political
activity.

(Id. at 1487).

58
Not only was Rall a known critic of the LAPD, but the
offending blog was based on an incident of police misconduct that
resulted in Rall lodging a privileged complaint against the
offending officer. Complaining publicly about the proper
allocation of police resources is decidedly political speech.
Complaining to the police about mistreatment is privileged. The
privilege is statutory (Civ. Code § 47(b)), and the First
Amendment right of petition for redress of grievances is
constitutionally protected in both California and the federal
constitutions.

Nor is there any doubt that the statutory protection for
an employee’s political activity, particularly political
speech, inures to the public at large rather than simply
to the individual or proprietary interests of the
employee or employer.

(Ali v. L.A. Focus Publication et al., supra, 112 Cal.App.4th at p.
1487).

Discovery will allow Rall to flesh out the role of the police
chief in silencing a critic. This is an example of the efficacy of
fictitious pleading. At this point in the proceedings there is
enough proof offered of a conspiracy to silence Rall, engaged in by
both public and private institutions, to meet the “minimal merit”
standard. (Soukup v. Law Office of Herbert Hafif, supra, 39
Cal.4th at p. 291). See 42 U.S.C. Sec. 1983, prohibiting both state
and private actors from violating civil rights. Rall satisfied Prong
Two and established a probability of prevailing on the wrongful
termination claim.

59
D. Rall Pled and Proved a Prima Facia Contract Claim
The contract counts were not addressed below. Although
Rall is presumed to be an employee at-will, Labor Code section
2922, “[t]his presumption may . . .be overcome by evidence that
despite the absence of a specified term, the parties agreed that
the employer’s power to terminate would be limited in some way,
e.g., by a requirement that termination be based only on ‘good
cause’.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677
[citations omitted].) The Court in Foley continued: “Generally,
courts seek to enforce the actual understanding of the parties to a
contract, and in so doing may inquire into the parties’ conduct to
determine if it demonstrates an implied contract.” (Id.) “In the
employment context, factors apart from consideration and
express terms may be used to ascertain the existence and content
of an employment agreement, including ‘the personnel policies or
practices of the employer, the employee’s longevity of service,
actions or communications by the employer reflecting assurances
of continued employment, and the practices of the industry in
which the employee is engaged.’ (Pugh, supra, 116 Cal.App.3d at
p. 327, 171 Cal.Rptr. 917; see Note, Implied Contract Rights to
Job Security (1974) 26 Stan.L.Rev. 335, 350-366 [reviewing
factors courts have used in implied contract analyses].) (Foley, 47
Cal.3d at 680).
Rall is requesting narrow relief against the Times. He is
not asking for a declaration of permanent employment. He is not
even objecting to his at-will status under most circumstances. He
is, however, seeking vindication of the policy that in the instance
of an employee accused of violating journalistic ethics that he
would have a fair opportunity to present his position before being
fired and that such policy was understood by all, both at the

60
Times, as stated by the Times’ published ethical guidelines, and
in the industry at large. Rall submitted declarations of multiple
journalists describing this industry standard policy for
responding to accusations of violation of rules of journalist
integrity. (3AA 734-35, 740, 747, 751) This policy exists because
of the devastating impact a claim of falsity would have on the
career of any journalist.
The exact contours of the Due Process rights no doubt
depend on the particular facts of each case, but here, at a bare
minimum, Rall was entitled to a face to face meeting with
superiors, preferably at the Editorial Board level, with input
received from his immediate superiors who worked with him on a
daily basis. None of this happened. Moreover, in a case where the
Times conducted an “investigation”, the investigation cannot be a
sham. Where a case comes down to a credibility contest, the
employee should be believed unless there is compelling evidence
to the contrary. Where the employee has volunteered to be
polygraphed at his own expense, there’d better be a good
explanation for refusing. And finally, when the evidence is a
recording, the employer has a professional obligation to obtain
and authenticate the original recording via a clear chain of
custody, and if that recording is unintelligible, have it enhanced
by a neutral expert. In the Times’ rush to judgment, none of these
commonsense protections were imposed.
Keep in mind that Rall’s firing took place in the context of a
long and fruitful employment relationship. For over six years Rall
was praised, promoted, proudly identified as a staff member and
given opportunities to develop professionally. One year, because
his compensation had been cut as a result of across-the-board
salary reductions, the supervising editor gave him a year-end

61
bonus. (3AA 683). His professional ethics were never questioned.
(3AA 697 ¶ 126). Within the cartooning community he worked to
promote a set of professional standards to apply across the
industry. Discovery will allow Rall to flesh out this issue. For
example, how were other employees accused of wrongdoing
treated by the Times? Will the current publisher, under internal
investigation for sexual misconduct, have an opportunity to tell
his side of the story? What do the internal Times employment
manuals say about accused employees?
The Times standards of ethics, submitted below, tells
reporters how to handle people who will be shown in an adverse
light:

People who will be shown in an adverse light must be
given a meaningful opportunity to defend themselves.
This means making a good-faith effort to give the
subject of allegations or criticism sufficient time and
information to respond substantively. Whenever
possible, the reporter should meet directly with the
subject in a sincere effort to understand his or her best
arguments.

(12AA 3719).

Inferentially, staff should get the same consideration.
At this point in the case Rall has, by submitting his
declaration and that of many colleagues in the editorial
cartooning community, established the “minimal merits”
necessary to allow the claim of breach of contract implied in fact
to proceed.

62
E. Rall Established a Probability of Prevailing on the
Merits as to his Defamation Claims

1. The Trial Court Erred in Applying the Fair and
Accurate Report Doctrine to Bar Rall’s Claims
Because Section 47(d) does not Apply; even if it
Applied, Rall’s Evidence Below Raised Prima Facia
Evidence Sufficient for the Defense to be Decided by
a Jury
The Times argued below that the “fair and true report”
privilege of Civil Code section 47, subdivision (d) (“Section 47(d)”)
immunizes them from liability. If it applies, the privilege is
absolute. Malice is irrelevant. (McClatchy Newspapers Inc. v.
Superior Court (1987) 189 Cal.App.3d 961, 964). For a number of
reasons, the “fair and true report” privilege does not apply here.

a. The police file accumulated in 2001 is not a “public
official proceeding” privileged by Section 47(d)
The language of Section 47(d) relied on by the Times is:

A privileged publication or broadcast is one made:
(d) (1) By a fair and true report in, or a communication
to, a public journal, of (A) a judicial, (B) legislative, or
(C) other public official proceeding, or (D) of anything
said in the course thereof, or (E) of a verified charge or
complaint made by any person to a public official, upon
which complaint a warrant has been issued.
(2) Nothing in paragraph (1) shall make privileged any
communication to a public journal that does any of the
following:

63
. . . (C) Violates any requirement of confidentiality
imposed by law.

(Civ. Code § 47).

The initial question posed by Section 47(d) is what is a
“public official proceeding”? “Public” has been decided by
California courts to mean simply “governmental.” (Crane v.
Arizona Republic (1992 9th Cir.) 972 F.2d 1511, 1518). As for
“proceeding,” Merriam-Webster offers this legal definition: “the
process of appearing before a court of law so a decision can be
made about an argument or claim: a legal action.” In the context
of an absolute privilege, where false and malicious elements
cannot disqualify its use, a public official proceeding ought to
contain within it a truth-seeking function that would allow any
false and malicious elements to be contradicted. (Burrill v. Nair
(2013) 217 Cal.App.4th 357, 397; People ex rel. Gallegos v. Pacific
Lumber Co. (2008) 158 Cal.App.4th 950, 957-58). The agency in
question here is the LAPD. It is appropriate to look at its
operating regulations to determine what the official proceedings
are that flow from a citizen complaint against an officer.
The LAPD is governed by a departmental manual
consolidating its policies, procedures and rules (the “Manual.”)20
Once a citizen complaint is received, a complaint form is filled out
and sent to the commanding officer of the employee whose

20 Portions of the Manual were submitted below. (12AA 3398).
Concurrent with this brief, Rall has requested judicial notice of
relevant portions of the Manual (RFJN Ex. 3). The entire Manual
is available online at: http://www.LAPDonline.org/lapd_manual.

64
conduct is questioned. A copy goes to internal affairs. (Manual §
810). Once the form is complete, the very first requirement of a
preliminary investigation is the recorded interview of the
complainant. (Manual § 811). Some complainants do not want to
be recorded, so the instructions for the interviewer is to get a
recording of the refusal to be recorded. (Id.) The interview of
complainants should be in person, “at sites and times convenient
to them.” (Manual § 815.01).
None of these LAPD procedures were followed in this case.
The “proceeding” never commenced. There was never even a
preliminary investigation. The investigator called a wrong
number a few times and gave up. Nor was the arresting officer,
Durr, formally interviewed. From what the file reveals, Durr
provided his personal microcassette recording of the incident to
the LAPD. Had Rall been interviewed by the LAPD he would
have provided the same detail of the incident that he did in his
blog.
When a preliminary investigation produces sufficient
evidence requiring an adjudication, the complaint is marked
“sustained” and the commanding officer must then make that
adjudication based on commonly accepted legal standards. (See,
for example, the rules regarding evaluation of witnesses in
Manual § 825.20). In the context of LAPD procedures, the
commanding officer’s adjudicatory process is the first “public
official proceeding” at which the truth of the complaint is tested
in a manner giving fair opportunity to the complainant and to the
officer. There is also a second kind of official proceeding, called a
Board of Rights hearing, which hears de novo appeals from
decisions to suspend, demote or fire.

65
Instead of developing into a “public official proceeding”,
Rall’s complaint was dismissed preliminarily as “unfounded”
because he (per the LAPD) failed to make himself available for
the initial recorded interview. In fact, the LAPD never contacted
Rall; the investigator left a message for someone with a thick
Asian accent – not Rall. (3AA 687 ¶ 56). The Section 47(d)
absolute privilege is inapplicable here.
In Hagberg v. Cal. Fed. Bank (2004) 32 Cal.4th 350, the
California Supreme Court held that complaints made to law
enforcement attempting to initiate an investigation of
wrongdoing were absolutely privileged by Section 47(b), even if
no “proceeding” eventuates. This is the “litigation” privilege. The
Court extensively summarized all prior holdings, and
distinguished authority that insisted that the absolute litigation
privilege required a hearing at which parties’ Due Process rights
were protected. See Imig v. Ferrar (1977) 70 Cal.App.3d 48, 56, in
which the citizen complaint against a police officer’s alleged
unprofessional behavior was held to be absolutely privileged. The
court cited with approval the statement in King v. Borges (1972)
28 Cal.App.3d 27, 34 that:

[t]he importance of providing to citizens free and open
access to governmental agencies for the reporting of
suspected illegal activity outweighs the occasional
harm that might befall a defamed individual. Thus the
absolute privilege is essential.

(Imig v. Ferrar, supra, 70 Cal.App.3d at p. 56).

66
The policy issues in Section 47(d) are far different from
Section 47(b). (See Burrill v. Nair21 (2013) 217 Cal.App.4th 357,
397-98; Hawran v. Hixon (2012) 209 Cal.App.4th 256, 279).
People who use the press to further their private agendas are not
as protected, nor should they be, as people complaining to law
enforcement about criminal behavior. The statutory language of
Section 47(d) specifically limits the privileged communication of a
complaint of misconduct as follows: only publication by a public
journal “of a verified charge or complaint made by any person to a
public official, upon which complaint a warrant has been issued”
is privileged. (Section 47(d)(1)(E)). Rall’s complaint to the LAPD
was not verified, nor did a warrant issue. By its clear language of
limitation, (E) requires that, for the privilege to apply, a citizen
complaint must be verified and a decision must be made by the
police authority to issue a warrant. By analogy, the cases like
Hagberg that hold an unverified complaint to law enforcement as
part of a “public official proceeding” are inapposite. A Section
47(d) “proceeding” requires some deference to the complainant’s
due process rights, such as the independent decision of the public
authority to issue a warrant upon probable cause. Here the
investigation was dropped before any such proceeding began.
Burrill v. Nair, supra, 217 Cal.App.4th at 397-98, is the
only California case that examines this extremely subtle
distinction. In distinguishing Hagberg the court held:

Here there is no evidence that any action was taken
with respect to Nair’s citizen complaint. Nair cites

21Burrill was disapproved by the Supreme Court for unrelated
reasons in Baral v. Schnitt (2016) 1 Cal.5th 376, 396.

67
Hagberg . . ., a case in which our Supreme Court held
the litigation privilege of Civil Code Section 47,
subdivision (b), applies to communications made to
law enforcement personnel reporting suspected
criminal activity (32 Cal.4th at p. 355) The court
explained that the litigation privilege “serves the
important public policy of assuring free access to the
courts and other official proceedings. It is intended to
‘assure utmost freedom of communication between
citizens and public authorities whose responsibility is
to investigate and remedy wrongdoing’ [citation]. . . .
The fair reporting privilege is not designed to assure
access to the courts and free communication between
citizens and law enforcement personnel. The purpose
of this privilege is to ensure the public interest is
served by the dissemination of information about
events occurring in official proceedings and with
respect to verified charges or complaints resulting in
the issuance of a warrant. (. . . .Rest.2d Torts Sec.611,
com.a, p.297.) The privilege has been held to apply to
fair reports of police investigations. . . But Nair has
cited us to no case, nor have we found any on our own,
holding this privilege applies to a report of the charges
made in a citizen’s criminal complaint, made by the
citizen who filed that complaint, when there is no
evidence any official action has been taken with respect
to the complaint. . .

(Burrill v. Nair, supra, 217 Cal.App.4th at 398, emphasis added).

68
As in Burrill v. Nair, since no official action was ever taken
in Rall’s complaint to the LAPD, other than to dismiss it for lack
of prosecution, the Section 47(d) privilege is inapplicable.

b. The July 2015 Note to Readers and August 2015
Article were not “true and fair” reports of the
LAPD’s file; they were reports of the Times’ own
intervening investigation
This case was halted before discovery could determine what
exactly Chief Beck provided to defendant Beutner, how the
materials were characterized, or even what the purpose of the
meeting was. We do know the meeting with Beutner prompted an
investigation by the Times. Beutner picked Pringle to investigate
the accuracy of Rall’s blog. Unlike the LAPD, Pringle did in fact
interview Rall telephonically, who insisted that his blog’s
description of the 2001 incident was accurate. Pringle shared
select portions of the file received from the LAPD with Rall. After
Pringle appeared skeptical of Rall’s account, Rall offered, at his
expense, to take a polygraph examination. His offer was ignored.
Rall then, at his own expense, retained an expert who enhanced
the LAPD audio and revealed substantial public commentary and
Rall’s handcuffing, thereby vindicating his position and the
statements made in the blog. Despite this, defendants in this case
have gone to great lengths to insist that their own private
intervening investigation of Rall was thorough, fair, unbiased,
and that the decision to fire him was reasonable based on all the
evidence. The defamatory articles reflect that point of view. The
visit by Chief Beck with the LAPD file was only the triggering
element of the Times’ investigation. The absolute privilege in
47(d) does not immunize private investigations, Hawran v.

69
Hixon, supra, 209 Cal.App.4th at 280-82, and therefore
defendants’ reliance on that code section is inapposite.

c. The LAPD personnel complaint investigation is a
confidential file, exempted from privilege by Section
47(d)(2)(C), whose “communication to a public
journal” violates “any requirement of confidentiality
imposed by law”
Police personnel investigations are confidential within the
police department, e.g Manual § 1070(y), and without. They are
not public documents accessible through the California Public
Records Act or the federal FOIA. In correspondence with Rall, the
Legal Affairs Division informed him that “in accordance with
Government Code Section 6254 (c) and (k), Penal Code Section
832.7 and Government Code Section 6254(f), the aforementioned
records are exempt from public disclosure.” December 9, 2015
letter from Bland, annexed hereto as Exhibit A. Section 6254(f) of
the California Public Records Act is right on point, and prohibits
disclosure of:

(f) Records of complaints to, or investigations
conducted by, or records of intelligence information or
security procedures of, the office of the Attorney
General and the Department of Justice, the Office of
Emergency Services and any state or local police
agency. . .

(See Haynie v. Superior Court (2001) 26 Cal.4th 1061,1070,
applying Section 6254(f) to audio recordings of routine traffic
stops).

70
Penal Code, section 832.7 is also right on point:

(a) Peace officer or custodial officer personnel records
and records maintained by any state or local agency
pursuant to Section 832.5, or information obtained
from these records, are confidential and shall not be
disclosed in any criminal or civil proceeding except by
discovery pursuant to Sections 1043 and 1046 of the
Evidence Code.

Release to the press of a police officer’s private recording of
an arrest has also been held to be a violation of the Los Angeles
City Charter and Administrative Code, punishable by a fine up to
$10,000 through the City of Los Angeles Ethics Commission.
(RFJN, Ex. 3 [officer fined for release of personal recording of
citizen encounter to news media].)
Even if Section 47(d) were otherwise applicable, the clear
exception in Section 47(d)(2)(C) for confidential records destroys
any reliance on that code section.

d. Even if all prior arguments are ignored, the
applicability of the “fair and true” report doctrine of
Section 47(d) in this case is a jury issue
In order for the defamatory reports in the Times to be
considered “fair and true,” the court has an obligation to
determine if reasonable minds could disagree as to the effect of
the communication on the average reader or listener. (J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247
Cal.App.4th 87, 98, 101). Where, as here, reasonable minds could
disagree on what is fair, the issue is a question of fact to be

71
determined by the jury. (Pierce v. San Jose Mercury News (1989)
214 Cal.App.3d 1626, 1633). The Times initially relied on its own
interpretation of a largely inaudible copy of a recording in order
to defame Rall in its Note to Readers. Rall disputed the Times’
conclusion. Subsequently, Rall had the audio enhanced and the
enhancement substantially vindicated his position. This Court,
for purposes of reviewing the granting of the Anti-SLAPP
motions, must assume the validity of Rall’s proof. The Times then
hired its own experts who contradicted the findings of Rall’s
expert. Then the Times doubled down on its defamatory
allegations against Rall, thus satisfying any requirement of
malice if that is held to be necessary. What actually occurred at
the time of Rall’s confrontation with Officer Durr is the crux of
the case, and the LAPD file is ambiguous and incomplete. If
Rall’s blog was accurate, he was defamed and fired
inappropriately. No court, at this stage of the case, can say that
the Times has shown that as a matter of law the defamatory
articles are a “fair and true” report of the LAPD file, particularly
since the articles go way beyond the LAPD file to assert the
results of their own private investigation.

e. The Trial Court’s conclusion that a majority of the
Times’ publications are privileged is a determination
that a minority of the Times’ publications were not
privileged
Even assuming arguendo that the trial court correctly
determined that the conditions of the true and fair privilege
applies, the ruling makes clear that portions of the publications
were not privileged and are therefore should not have been
stricken. At the conclusion of the August 4, 2017, minute order,

72
the trial court found that “the majority of the content of the
editor’s note and article are privileged…” (18AA 5933). This
conclusion means that a portion of the July 2015 Note and
August 2015 Article were not privileged and Section 47(d) does
not apply. As such, as to those portions of the publications that
were not privileged, the motion should have been denied. The
Supreme Court has directed that an Anti-SLAPP motion can be
used to strike portions of a cause of action. (Baral v. Schnitt,
supra, 1 Cal.5th 376, 391-92). Under Baral, if the trial court
found that some portions of the Note and Article were privileged
under Section 47(d), the defamation claims should only have been
dismissed as to those portions.
The trial court did not delineate which portions of the
Times’ statements were privileged and which were not. One
educated guess from the trial court’s ruling is that it found the
portions of the Note and Article reporting on the LAPD’s
investigation to be privileged under Section 47(d) while the
portions of the Note and Article discussing the Times’ own
investigation were not. Section 47(d) does not apply at all to this
matter as set forth above. But if this Court disagrees and applies
Section 47(d), the privilege should not reach those portions of the
Note and Article that recount the Times’ investigation.
Rall’s evidence below established each element of
defamation: “(1) a publication that is (2) false, (3) defamatory, (4)
unprivileged, and (5) has a natural tendency to injure or causes
special damage.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354,
1369). In addition, although not discussed by the trial court,
Rall’s evidence also established the Times’ malice sufficient to
overcome Rall’s status as a limited public figure if necessary.
(Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1260

73
[holding that public figure may recover defamation claim only if
he proves malice – actual knowledge of falsehood or reckless
disregard of truth].)

2. The Note Included False Statements of Fact
The complaint alleges (and Rall’s declaration in opposition
to the Anti-SLAPP motions establishes) the following false
statements of fact made in the Note. Those false statements
included:
That the LAPD produced its records to the Times about the
incident. (1AA 44 ¶ 14(c)). In fact, although the LAPD produced a
digital audio file and some portions of Rall’s complaint and the
LAPD’s response, the complete files were never released by the
LAPD to the Times. (3AA 728).
That an audiotape of the 2001 detention does not “back up”
Rall’s account of physical violence, that Rall’s [driver’s] license
was thrown in the sewer22 or that he was handcuffed.” (1AA 44 ¶
14(c)). It is unclear how an audio tape would ever fully “back up”
an account of physical violence. That said, the enhanced audio
provided by Rall to the Times contains the statements of
onlookers mentioning the handcuffing. Rall’s declaration refutes
that Officer Durr was polite. (3AA 686). At the Anti-SLAPP
stage, Rall’s evidence is to be believed for purposes of assessing
his prima facia showing. (1-800 Contacts, Inc. v. Steinberg (2003)
107 Cal.App.4th 568, 585). The Times’ evidence should be

22The Times made much below about the difference between
Rall’s prior account of his license being thrown in the “sewer” and
his 2015 account of his license being thrown in the “gutter.” In
the Midwest, where Rall grew up, and in much of the country, the
two terms are interchangeable synonyms.

74
considered only to the extent it established any defenses as a
matter of law but otherwise disregarded. (Ibid.)

3. The Article Included False Statements of Fact
The complaint alleges (and Rall’s declaration in opposition
to the Anti-SLAPP motions establish) the following false
statements of fact made in the Article. Those false statements
included:
That a tape recording and documents provided by the
LAPD to the Times proved that Officer Durr did not use force
against Rall and treated him politely. There was no “tape”
provided by the LAPD. There is a digital audio file, and that
supports Rall’s account, not the LAPD’s. (1AA 46-47 ¶ 20(a)).
That the Times interviewed Rall about discrepancies
between the LAPD records, the tape and his blog post. (1AA 47 ¶
20(b)). There were no discrepancies.
That the “tape” provided by the LAPD to the Times
includes a minute and a half recording of unintelligible
background comments. (1AA 48 ¶ 20(l)). There was no “tape”
provided by the LAPD. The comments were not unintelligible. An
enhancement reveals what they said. (3AA 707 ¶ 182).
That Officer Durr had never handcuffed anyone for
jaywalking. (1AA 49 ¶ 20(o)). In fact, Officer Durr has handcuffed
and mocked suspects for the lesser offense of illegal street
racing.23 (3AA 695 ¶ 117).
That the LAPD told the Times that the audio has no
indication that the tape was spliced or altered. (1AA 50 ¶ 20(s).)

23Street racing is a less serious offense than jaywalking. Street
racing is a violation while Jaywalking is a misdemeanor.

75
However, because the audio was digital and not the original tape,
there is no way to determine whether the original tape was
spliced, edited or altered. (3AA 705 ¶ 172).
That Rall has offered changing versions of the 2001
detention over time and those charges are “significant.” (1AA 50
¶ 20(w).) In fact, there are no changing versions. At various
points in time, Rall has offered the same facts but with different
levels of detail. (3AA 688 ¶ 61).
That no version of the recording of the 2001 detention –
including Rall’s enhanced version – supports the allegation that
Durr was violent, hostile, rude and belligerent. (1AA 51 ¶ 20(y).)
In fact, readers of the Times commented they listened to the
unenhanced audio and heard comments about handcuffing. (3AA
700 ¶ 145). The enhanced audio reveals comments about
handcuffing. (3AA 706 ¶ 182).

4. The Note and the Article are not Protected as Mere
Opinions or Conclusions
The Times argued below that many of the statements in
the Note and Article are opinion and do not qualify as statements
of fact for a defamation action. The trial court latched onto this
argument and cited Partington v. Bugliosi (9th Cir. 1995) 56 F.3d
1147, 1156 for the proposition that the Note and Article are
“conclusions” and “protected under the First Amendment.” (18AA
5933). The trial court erred in applying Partington here. The rule
in Partington is premised on a scenario not present here: when
the writer discloses all facts supporting a conclusion. (Partington
v. Bugliosi, supra, 56 F.3d, at p. 1156). The theory being that
when all facts are disclosed “no reasonable reader would consider
the term anything but the opinion of the author drawn from the

76
circumstances related.” (Ibid.) Statements are protected from
liability because there is no implied assertion of fact but instead
there is a conclusion based on facts available to all readers.
(Ibid.)
Partington is readily distinguishable. Here, the Note and
Article imply the following statement of facts:
1. That the Times had the original media (tape) – and not
a digital audio of unknown origin – depicting the 2001
detention. (1AA 66). Possession of the original tape as
opposed to a digital copy renders the LAPD’s account
more credible to the readers.
2. That Rall’s sole response to the “tape” when asked was
that he “stands by his blog post.” (1AA 66). In fact, Rall
had much more to say than just standing by his original
blog post. (3AA 690-696 ¶¶ 70-218). The Times had
possession of all of Rall’s response but withheld that
from the readers of the Note and Article. The Times also
withheld from its readers that it had not done a full
expert analysis of the audio. (3AA 705-706 ¶¶ 169- 173).
3. That based on both the tape (which the Times did not
have) and unspecified “other evidence” possessed by the
Times there were “serious questions” about Rall’s post
and it “should not have been published.” (1AA 66). The
Note certainly did not lay out this “other evidence” in
the Note and only some of the cherry-picked “evidence”
in the Article.
4. That because the Times is a “trusted source of news
because of the quality and integrity of the work it
published” Rall’s work was of low quality and low

77
integrity based on the Times’ (non-existent) “tape” and
other “evidence.” (1AA 66).
5. The Article likewise indicated that the Times had a
“tape” – the original media. (1AA 68).
6. The Article indicates that LAPD officers “tried
repeatedly to reach Rall.” (1AA 69). In fact, the
answering machine the LAPD called was demonstrably
not Rall’s and that would have been apparent had
anyone at the Times who knew Rall’s voice listened to
the recording offered by the LAPD. (3AA 687 ¶ 56).
The Article ends with the heading “The Times’
conclusions:” and states that the Times “continues to have serious
questions about the accuracy of Rall’s blog post.” (1AA 75). “The
Times stands by its [Note] and its judgment that Rall’s May 11
blog post should not have been published.” (1AA 75). The
“conclusion” and “judgment” are not exempt from liability under
Partington because the foregoing facts were withheld from
readers. Nor do California authorities provide immunity from
liability for the conclusions drawn in the Note and Article.
Division Eight of this Court has explained the interplay of
opinion and fact in the context of defamation actions:

Because defamation requires a falsehood, it is
sometimes said that an opinion, which is neither true
nor false, is not actionable. This is an
oversimplification. Statements of opinion do not enjoy
blanket protection. The issue is whether the statement
of opinion implies a statement of fact. Statements
of opinion that imply a false assertion of fact are

78
actionable.

(Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 685 [cleaned up]).

It would be destructive of the law of libel if a writer
could escape liability for accusations of defamatory
conduct simply by using, explicitly or implicitly, the
words “I think”

(Dickinson v. Cosby, supra, 17 Cal.App.5th at p. 685 [cleaned
up]).

The critical inquiry is whether under the totality of the
circumstances, “whether a reasonable fact finder could conclude
the published statement declares or implies a provably false
assertion of fact.” (Yelp Inc. v. Superior Court (2017) 17
Cal.App.5th 1, 16).
Here, the Note and Article lays out some evidence, suggests
there is “other evidence” and tells the readership of the Times:
that the Times thinks Rall has no integrity and lied about the
2001 detention. This is a statement of fact that is actionable for
defamation. A reasonable jury could conclude that the assertions
made in the Note and Article “declares or implies a provably false
assertion of fact.” (Yelp Inc. v. Superior Court, supra, 17
Cal.App.5th at p. 16). And accordingly, the great majority of
press articles in reaction to the firing understood that the Times
was calling Rall a liar and fabricator.

79
5. Because it was Defamation Per Se Damages are
Presumed
The issue of damages from defamation was not
meaningfully contested below and the trial court did not rely on
the element of damages to dismiss the claims. Nonetheless, in
light of this Court’s de novo standard of review, Rall briefly
addresses the damages issue here. (Trilogy at Glen Ivy
Maintenance Association v. Shea Homes, Inc., supra, 235
Cal.App.4th at pp. 367-68).
A defamation per se claim may proceed without proof of
actual damages. (Yow v. National Enquirer, Inc. (E.D. Cal. 2008)
550 F.Supp.2d 1179, 1183). Defamation per se occurs when the
target is exposed 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

(Yow v. National Enquirer, Inc., supra, 550 F.Supp.2d at p. 1183).

The Times met this standard when they concluded that
Rall’s articles and cartoons were no longer fit for publication in
the Times and that the original blog post “should not have been
published.”

6. Rall Suffered Actual Damages
Although unnecessary for a defamation per se action, Rall’s
opposition to the Anti-SLAPP established the damages suffered.
Having a major newspaper with the Times’ size and readership
declare Rall a liar would impact Rall’s ability to find work. (3AA

80
697 ¶ 127). Websites republished the Times’ firing and conclusion
that Rall lied about his 2001 detention. (3AA 701 ¶¶ 150-167,
185, 191-192, 194 - 197). Rall’s firing was discussed on Twitter.
(3AA 715 ¶ 223). Rall’s firing came up in Google searches about
Rall. (3AA 715 ¶ 224). Rall has had difficulty gaining new clients.
(3AA 716 ¶ 229). Rall’s speaking opportunities, job prospects and
freelance opportunities have decreased. (3AA 715 ¶ 229). The
Times’ actions impacted Rall’s professional relationships with his
colleagues. (3AA 716 ¶ 230-32). The impact on Rall’s health has
been profound: his ability to sleep, ability to avoid sickness,
headaches and asthma have been impacted. (3AA 718 ¶ 236).

7. Rall is not a Limited Public Figure, But Even if he
Were, Rall Made out a Prima Facia Case of Malice
Sufficient for his Defamation Claim to Proceed
The trial court concluded that Rall was a public figure for
purpose of the first prong24 and that the defamation claims arise
from a discussion of a public issue. But the trial court ducked the
issue of public figure and proof of malice for the second prong and
whether Rall could prove malice as required by a limited public
figure plaintiff in a defamation action.

24The trial court concluded Rall was a public figure because he
signed his cartoons and Rall’s work contributed to an issue of
public interest. (18AA 5931). By this standard, every editorial
cartoonist who signs his or her cartoons in any publication, no
matter how small or obscure, would be said to have pervasive
fame or notoriety.

81
a. Rall was not a limited public figure
In defamation jurisprudence, there are two types of public
figures: “all purpose” and “limited purpose.” (Reader’s Digest
Assn. v. Superior Court (1984) 37 Cal.3d 244, 253). Rall is not the
former: he is not, and no one has argued that he has such
pervasive fame or notoriety that he is a public figure “for all
purposes and all contexts.” (Ibid.) Nor is he a limited purpose
public figure.
Establishing limited purpose public figure status requires
three things: 1) that there was a public controversy debated in
public that had foreseeable and substantial ramifications for
nonparticipants; 2) the plaintiff must have voluntarily sought to
influence resolution of the public issue; and 3) the “alleged
defamation must be germane to the plaintiff’s participation in the
controversy.” (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th
1569, 1577).
There is no doubt that in 2015 and in writing his blog post,
Rall injected himself into the public debate of the 2015 crackdown
by the LAPD. But the 2015 jaywalking crackdown is not the
relevant context for purpose of Rall’s defamation claims. The
LAPD’s use of violence and handcuffs against Rall in 2001 is the
relevant context for Rall’s defamation claims.
Rall’s 2001 encounter with the LAPD was not – prior to
Rall’s firing – a matter of any public notice, discussion or debate.
Whether the LAPD should use force or handcuff suspects was not
publicly debated in 2001 (or 2015). Rall’s defamation claims
asserted against the Times were about whether Rall lied about
his 2001 LAPD detention and the violence against Rall.
Admittedly, the second and third factors are present: in
2015 Rall did refer to the 2001 detention by Officer Durr (not by

82
name) to influence Times’ readers about the 2015 LAPD
crackdown on jaywalking. However, the first element is not
present. Prior to his firing, there was never any meaningful
public controversy about whether in 2001 Rall was handcuffed or
manhandled by Officer Durr. Nor did Rall’s 2001 detention have
any foreseeable or substantial ramifications for nonparticipants.
The issue impacted Rall alone. Under Ampex, the first required
finding cannot be made and Rall is not a limited purpose figure.

b. Malice is demonstrated by over a dozen “Red Flags”
that the Times proceeded to fire Rall and ruin his
reputation without regard to the truth
In defamation actions against public figures, a plaintiff
must prove that the defamatory statement was made with actual
malice – knowledge it was false or reckless disregard of its truth.
(Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1260).
Although the trial court made no conclusions about the issue of
malice, this Court can easily so conclude exercising its de novo
review of the evidence that were “red flags” that demonstrate
circumstantially that the Times lacked any disregard for the
truth of its accusations or the impact on Rall:
Red Flag: The primary evidence relied on by the Times to
fire and defame Rall was the so-called “tape” provided by the
LAPD. The source of this evidence was the very entity that Rall
had criticized in his blog post. The fact that the source of the
evidence was also the target of Rall’s repeated criticism should
have raised a red flag.
Red Flag: The LAPD provided an unintelligible audio data
file and not the actual tape. The Times blindly accepted this

83
audio data file without asking for or obtaining the original media
– Officer Durr’s microcassette.
Red Flag: The documents provided by the LAPD to the
Times contained a purported call log that included obvious errors,
such as writing down the wrong year an attempted call was
made. This sloppiness should have prompted skepticism by the
Times.
Red Flag: In all his years at the Times, no one had ever
questioned Rall’s veracity or integrity. (3AA 696-97 ¶ 126).
Red Flag: When the Times had occasion to question the
truth of Rall’s blog posting, they did not send Human Resources
to question Rall. They did not have Rall’s own editors contact
him. The Times Editorial Board did not contact him. Instead,
Rall received a call from a Times reporter, Pringle. (3AA 689 ¶¶
68-69). The use of a Times reporter rather than HR, the Editorial
Board or Rall’s own editors was unusual. Pringle didn’t talk to
Rall’s direct editors.
Red Flag: When Pringle was dispatched to question Rall
via telephone, Pringle was armed with the LAPD-supplied audio.
Rall was not given that audio until later. (3AA 693 ¶ 104). This
was an ambush.
Red Flag: Pringle informed Rall that the LAPD-supplied
audio was authentic and was not spliced or tampered with. (3AA
690 ¶ 79). But no one can make such a claim from a second-hand
audio transfer from a tape. (3AA 705 ¶ 170). Only an audio
forensics authentication analysis of the original tape can rule out
tampering. (3AA 705 ¶ 170).
Red Flag: Rall informed two representatives of the Times
on two separate occasions that the reason the LAPD-supplied
audio does not depict the sound of a paper driver’s license hitting
the ground is because the microphone technology used by Officer

84
Durr was limited. (3AA 692 ¶ 90, 694 ¶ 108). This fact (and Rall’s
assertion of this fact) was not disclosed by the Times in its Note
or Article.
Red Flag: When Rall asked Pringle whether the Times
was investigating Rall about the story to determine Rall’s future
status, Pringle said he did not know. (3AA 694 ¶ 115).
Red Flag: Pringle told Rall that Officer Durr had never
used handcuffs throughout his career with the LAPD. (3AA 694-
95 ¶ 116). In fact, there are news accounts by the Times of Officer
Durr mocking and handcuffing street racers. (3AA 695 ¶ 117).
One such account of officer Durr was published by the Times in
May 2015. (3AA 695 ¶ 117). The enhanced tape reveals
handcuffing, not only vindicating Rall but discrediting Durr.
Red Flag: Rall offered to take a polygraph test at his own
expense. (3AA ¶ 118). The Times’ declined that offer.
Red Flag: The Times’ Editorial Board did not meet to
resolve the issue of Rall’s employment rather it was handled by
people at the highest level of management at the Times. (3AA
696 ¶ 122). The bypassing of the Editorial Board is contrary to
industry practice and the Times’ practices. (3AA 696 ¶ 122).
Red Flag: Rall’s direct supervisor, Brenneman, believed
Rall was telling the truth. (3AA 696 ¶ 122). And Goldberg
admitted there had never before been any question regarding
Rall’s credibility.
Red Flag: The Times moved to fire Rall within 24 hours of
Pringle’s first contact with Rall. (3AA 698 ¶ 135). And they did
not give Rall the opportunity to meet with the Editorial Board or
any meaningful opportunity to defend himself. (3AA 695-96 ¶
122). The Times’ Ethical Guidelines require that people be given
an opportunity to defend themselves and be given a sufficient

85
time and information to respond. (17AA 4398). Direct meetings
with a subject are preferred by the Times Ethical Guidelines.
(17AA 4398). No one met with Rall. Rall was hung out to dry via
emails and a series of phone calls.
Red Flag: After Rall was fired, a local radio host listened
to the unenhanced LAPD-supplied audio and told his audience
that he heard a woman asking why Officer Durr handcuffed Rall.
(3AA 700 ¶ 145).
Red Flag: After Rall was fired, the Times, a media
organization, declined multiple inquiries from media for
comment. (3AA 700 ¶ 146).
Red Flag: Audio authentication is a scientific process that
requires the original recording device – in this case Officer Durr’s
microcassette recorder – and the original recording media – the
tape. Neither was available and the absence of the device and
tape impaired any expert opinion about whether the tape had
been manipulated or was authentic. (3AA 705 ¶ 170). It is
impossible to authenticate a digital copy of audio and a digital
copy should not be relied on for any significant decision. (3AA 705
¶ 172). These important limitations on expert assessment of
audio were never disclosed by the Times to its readers.
Red Flag: Prior to Rall’s firing, the Times did not attempt
to enhance the LAPD-supplied audio despite their awareness
that enhancement is possible. (3AA 705-06 ¶ 173).
Red Flag: Prior to Rall’s firing, no one at the Times
disclosed to Rall the source of the audio tape. (3AA 706 ¶ 177).
Red Flag: Rall had the LAPD-supplied audio enhanced.
(3AA 707 ¶ 182). The enhancement revealed comments by
onlookers inquiring about Rall’s handcuffing. (3AA 707 ¶ 182).

86
Red Flag: The investigator looking into Rall’s complaint
called a wrong number that was not Rall. Pringle should have
been aware of that.
Red Flag: In 2009 the Times published an article, “L.A.
police union wants San Diego newspaper writers fired,” which
detailed the LAPD Protective League’s purchase of a stake in the
San Diego Union-Tribune and its subsequent demand that “those
who currently run the editorial pages should be replaced.” (3AA
715 ¶ 222). The history of police interference in Southern
California newspaper firing decisions should have prompted a
careful approach in response to Chief Beck’s allegations against
Rall. Given that this history was recent, the publication of a
gloating article by the LAPD Protective League about Rall’s firing
immediately following the publication of the Note should have
caused the Times to take even greater care.
Red Flag: Rall’s May 2015 blog post was edited and
approved by Times editors. Yet no one besides Rall was fired by
the Times for his supposed fabrication.
Any of these Red Flags alone would support a finding of
malice – indifference to the truth. Taken together they more than
meet the “minimal merit” standard Rall faced at the Anti-SLAPP
stage.

F. Rall established a probability of prevailing on the
merits as to his blacklisting claims
The Note and Article severely impacted Rall’s employment
opportunities in violation of Labor Code sections 1050 and 1054.
Labor Code Sec. 1050 provides:

Any person, or agent or officer thereof, who, after
having discharged an employee from the service of

87
such person or after an employee has
voluntarily left such service, by any
misrepresentation prevents or attempts to prevent the
former employee from obtaining employment, is guilty
of a misdemeanor.

This is the prohibition of blacklisting. Whether or not there
is a criminal proceeding, aggrieved former employees may bring a
civil action against anyone who violates section 1050. (Lab. Code
§ 1054).
The elements of a claim of blacklisting are: 1) the employee
has been discharged; 2) either the employee is actually prevented
from, or there has been an attempt to prevent the former
employee, from obtaining employment, 3) by means of a
misrepresentation. In this case there is no question that Rall was
discharged. He has submitted a declaration describing his
difficulties in finding new employment, and his loss of friendly
contacts in the world of political cartooning, where word of mouth
is critical in obtaining new assignments. (3AA 716 ¶¶ 229-230).
This court can take judicial notice that proving a negative is
challenging; thus plaintiff’s detailed and failed efforts to find
replacement employment for his L.A. Times position, or even
additional freelance employment, should suffice at this stage of
the case to make a prima facie showing likelihood of success at
trial.
As for the third element, misrepresentation can be either
intentional, thus fraudulent, or negligent. The difference between
the two is simply the level of intent on behalf of the party making
the misrepresentation. One can be liable for negligent
misrepresentation even if the party making the statement

88
believes the statement to be true. The elements of
negligent misrepresentation are:

[M]isrepresentation of a past or existing material fact,
without reasonable ground for believing it to be true,
and with intent to induce another’s reliance on the fact
misrepresented; ignorance of the truth and justifiable
reliance on the misrepresentation by the party
to whom it was directed; and resulting damage.

(Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967,
983).

Here the misrepresentation is that Rall is a fabricator and
the Times’ investigation proved it, when the truth is that Rall
had the audio enhanced and it vindicated him. There were no
reasonable grounds to believe the misrepresentation. (See Part 7b
above with 23 Red Flags). Publication of the articles was evidence
of the Times’ effort to convince the world (including all future
employers) that Rall lacked integrity, and such publication
demonstrably worked. The entire political cartooning world
quickly learned of the misrepresentation, and it immediately
impacted Rall’s career, and health. Rall did produce evidence of
the damage inflicted by the Times:

After Defendants published the Note and Article, I
have found difficulty in my attempts to expand into
new areas and in gaining new clients. I have noticed
that the number of speaking opportunities, job
prospects, freelance illustration assignments and new

89
newspapers and magazines reaching out to contact me
about publishing my work, as well as the number of
replies to my queries, have dropped precipitously since
the summer of 2015. I have noticed a marked decrease
in the number of professional opportunities for me and
a higher frequency of being turned down for
opportunities which I pursue.

(3AA 716 ¶ 229).

The Times’ insistence that Rall, at this point in the case,
produce a list of specific employers who refuse to employ Rall is
off point. The anti-blacklisting statute imposes liability for mere
attempts. At this stage of the case, Rall’s blacklisting allegations
survive.

90
CONCLUSION
For the foregoing reasons, appellant respectfully requests
that the Court:
1. Reverse the June 21, 2017 and August 4, 2017 orders
granting the Anti-SLAPP motions;
2. Reverse any finding that respondents are the
“prevailing party” below;
3. Remand this matter with directions that the trial
court enter new orders denying the Anti-SLAPP
motions; and
4. Such further and different relief as this Court may
deem just and proper.

Dated: February 6, 2018 By: ___________________________
Roger A. Lowenstein

Attorney for appellant

Dated: February 6, 2018 By: ___________________________
Jeffrey Lewis

Attorney for appellant

91
CERTIFICATE OF WORD COUNT
I certify that the word count for the foregoing
APPELLANT’S OPENING BRIEF 19 56 is as counted
by Microsoft Word for Mac Version 16.9.1, which was used
to produce this brief.

Dated: February 6, 2018 By: ___________________________
Jeffrey Lewis

Attorney for appellant

92
EXHIBITS
Pursuant to California Rules of Court, Rules 8.204,
subdivision (d), Rall attaches to his brief the July 28, 2015 Note
to Readers and the August 19, 2015 Article.

93
Exhibit 1 – The July 28, 2015 Note to Readers

94
A noteto readers - LA Times

Opinion / Opinion L.A .

Editor's Note A note to readers
JULY 28 , 20 15 , 5:00 AM

I
n a May 11 post on The Times' OpinionLA blog, Ted Rall - a freelance cartoonist whose work
appears regularly in The Times - described an incident in which he was stopped for jaywalking
on Melrose Avenue in 2001. Rall said he was thrown up against a wall, handcuffed and roughed
up by an LAPD motorcycle policeman who also threw his driver's license into the sewer. Rall also wrote
that dozens of onlookers shouted in protest at the officer's conduct.

Since then , the Los Angeles Police Department has provided records about the incident, including a
complaint Rall filed at the time. An audiotape of the encounter recorded by the police officer does not
back up Rail's assertions; it gives no indication that there was physical violence of any sort by the
policeman or that Rall's license was thrown into the sewer or that he was handcuffed. Nor is there any
evidence on the recording of a crowd of shouting onlookers.

In Rall's initial complaint to the LAPD, he describes the incident without mentioning any physical
violence or handcuffing but says that th e police officer was "belligerent and hostile" and that he threw
Rall's license into the "gutter." The tape depicts a polite interaction.

In addition, Rall wrote in his blog post that the LAPD dismissed his complaint without ever contacting
him. Department records show that internal affairs investigators mad e repeated attempts to contact
Rall, without success.

Asked to explain these inconsistencies, Rall said he stands by his blog post.

As to why he didn't mention any physical abuse in his letter to the LAPD in 2001, Rall said he didn't
want to make an enemy of the department, in part because he hosted a local radio talk show at the time.
After listening to the tape, Rall noted that it was of poor quality and contained inaudible segments.

However, the recording and other evidence provided by the LAPD raise serious questions about the
accuracy of Rall's blog post . Based on this, the piece should not have been published.

Rail's future work will not appear in The Times.

The Los Angeles Times is a trusted source of news because of the quality and integrity of the work its
journalists do. This is a reminder of the need to remain vigilant about what we publish.

-Nicholas Goldberg

http://www.iatjmes.com/opinionlopinioo-1211a-oe-rall-20
15072S.story.html

Exhibi t 1 - Page 1
Exhibit 2 – The August 19, 2015 Article

96
Times reaffirms decision thatTed Rail's blogpost did not meet its standards- LA Times

Times reaffirmsdecisionthat Ted Rail'sblog post
did not meet its standards
AUG UST 19, 20 15, 1:15 PM

A blog post by political cartoonist Ted Rall, and a subsequent note to readers by Nicholas
Goldberg, editor of The Times' editorial pages, have occasioned questions from readers. Below is
a detailed look at the matter by Times editors. -- Deirdre Edgar, readers' representative

Rall is a freelance cartoonist and commentator whose work has appeared in The Times' Opinion
pages.

On May 11, he published a post on The Times' OpinionLA blog in which he criticized as excessive a
police crackdown on jaywalking. In the post, Rall described being ticketed for jaywalking years
earlier by a Los Angeles police officer. He wrote that the officer "threw me up against the wall,
slapped on the cuffs, roughed me up and wrote me a ticket."

The Los Angeles Police Department challenged Rail's account and provided documents and a tape
recording of the 2001 encounter that indicate the officer did not use force against Rall and treated
him politely. The Times interviewed Rall about the discrepancies between the police records and
tape recording and his blog post.

Finding his explanations unsatisfactory, The Times decided that the post did not meet its
standards. Goldberg said in a note to readers July 28 that the LAPD records and other evidence
"raise serious questions about the accuracy" of the blog post, and that Rall's work would no longer
appear in The Times.

Rall has complained that 'The Times acted unjustly, based on flawed evidence. He has demanded
that the paper retract its note to readers and reinstate him as a contributor.

In response, The Times has reexamined the evidence and found no basis to change its decision.

Among the material reviewed was Rall's original complaint to the LAPD, written days after the
jaywalking stop, when the encounter was fresh in his mind. In the letter, Rall accused the officer
of rudeness but not of any physical abuse.

In published accounts years later, including his Opinion.LA post, Rall added allegations that the
officer handcuffed and manhandled him, that a crowd of two dozen onlookers shouted in protest
at the mistreatment and that a second officer arrived and ordered his colleague to let Rall go.

http://www.latimes.comnocal/readers-replla-ed-ted-rall
-documents-recordings-20150814-htmlslory
.html 1/8

Exhibit 2 - Page 1
Times reaffirms decision that Ted Rail's blog post did not meet its standards - LA Ti mes

The Times also had two forensic audio experts analyze the LAPD recording after Rall asserted tha t
background voices, which he said were audible on a version enhanced for him by sound
technicians, supported his account. Rall has insisted that two women can be heard objecting to
the officer's handcuffing of him.

The experts engaged by The Times, in separate assessments, said the y could not hear any mention
of handcuffs. Both also said they found no indication that - as Rall has asserted - the LAPD
recording was edited, spliced or otherwise altered to conceal misconduct by the officer.

Rall has written repeatedly that the LAPD ignored his original complaint. Department records
show that investigators looked into his allegations, questioned the officer who ticketed Rall,
listened to the recording and tried repeatedly to reach RaU. Then-Police Chief Bernard C. Parks
sent Rall a letter informing him that an investigation had determined his allegations were
unfounded.

FoUowing is a review of the controversy, the LAPD documents, Rail's accounts and other
information on which The Times based its decision.

The jaywalking stop

On the evening of Wednesday, Oct. 3, 2001, a motorcycle officer named Willie Durr cited Rall for
jaywalking - crossing against a "don't walk" signal - on Melrose Avenue near Gardner Street in
the Fairfax District.
Jaywalking citation (p. I)

-~=-==-
-==~~
~--::;:?~;~~~=;.~a ~ :·
-!i.~~~=:
,·~
~::;::- ~75:. ~ ~ ~"'~ :·¾i!-'¥
"1.:···.··-~..•-- ·:1 •

,,:_ -··..
·===·= --==
=·-,,.
--==

View entire document with DocumcntCloud

Twelve days later, Rall sent a complaint to the LAPD, saying he had not jaywalked and that Durr
became "belligerent and hostile" when Rall asked him how to deal with the citation.

'bellig erentand h_ostilc' (p. 2)

•!#§t'S4":l mm· 5 J

i..f~N-!i:ii~~~~~~-j;'~~;~,t~~~~Jlif:~a~i'.i't~~~~~~~:c:t~.: -::-:
-
f.:1.,z),,.-,~ '":
:;--~~~d_~~ :-!'"
:-;:~ :-;;;,:
. :-~~.:-~.i:-::.:_ :-:;-:~, ~~~~~T. --:T;;u~~ ~-=;'B. iaU.ifl...fZ' _'~ --
!Z.G=~S.':¥~*~.k.:a.3;:--~-:,-;-- 7:'.;!:"~
"..
<i:":.'.
ilF(.:C '!J. ~:~--=-..-:-:::'!"0;t-
r~ i~/:'.Td!:t-.:5:t1-~
.t1~
.\':£.:.""'...~Jr;_
~ -:.::h--B'S.G-
"-l2 41.....::-...!r.~
-

View entire document with DocumcntCloud

Rall said Durr refused to answer when asked if the ticket could be paid by mail and then threw
http1/www.latimes.comnocal/readers-rep/la-ed-ted-rall-documenls-rec°'dings-20150814-hlmlst°' y.hlml 2/8

Exhibi t 2 - Page 2
nmes reaffirms decision thatTed Rail's blog post did not meet its standards- LA Times

Rail's driver's license into the gutter.

In the letter, dated Oct. 15, 2001, Rall asked the department to consider dismissing Durr, whom he
described as "an ill-tempered excuse for a police officer."

Rall said Durr exhibited "vile rudeness." He compared the officer unfavorably to Taliban fighters
who he said had detained him briefly while he was on a reporting trip "near the Afghan war zone."

In the letter, Rall did not accuse Durr of using force against him or putting him in handcuffs.

Rail's subsequent accounts

Rall has offered varying descriptions of the jaywalking stop since then.

In 2005, in a column published in the Boise Weekly under the headline "Police perjurers - throw
lying cops off the force," the cartoonist railed against what he described as pervasive police
dishonesty . He cited his jaywalking case as an example, writing that Durr handcuffed and ticketed
him even though he had crossed the street legally with a "walk" signal.

He said the LAPD "repeatedly ignored my complaints about this unprofe ssional goon."

In a 2006 post on his personal blog, Rall invoked the jaywalking ticket as an example of ho w
police abuse citizens and get away with it: "An African-American cop cuffed me, thr ew me up
against the wall and roughed me up before writing me a ticket and letting me go."

Rall wrote: "I was polite. I didn't resist. I'm not stupid; the guy has the legal right to shoot me.
Anyway, I filed an Internal Affairs complaint. Guess what happen ed?

"If you're black and reading this, you know the answer: Nada. Cops get away with murder all th e
time."

Rall revisited th e encount er in a 2009 column, headlined "Everyone hates the cops," in which he
wrote, "I admit it: I don 't like cops." Rall said he couldn't "point to a single positive experience I've
ever had with a cop," adding that he'd had '1ots and lots of negative ones."

He cited, among other exampl es, his 2001 jaywalking ticket. He wrote that Durr roughed him up
and threw his wallet - not merely his license - into the sewer, and that the officer then '1aughed
and zoomed off on his motorc ycle." Rall again said the LAPD ignored his complaint.

This year, in his post for The Times' OpinionLA blog, Rall wrote that Durr thr ew him against a
wall, slapped on handcuff s and roughed him up.

In an element missing from his previous accounts listed her e, Rall said the "ugly scene" drew a

htlp://www.latimes.comnocal/readers-rep1a-ed-ted-ra11-documents-recordings-20150814-hlm
lstory.html

Exhibit 2 - Pag e 3
Times reaffirms decision that Ted RaJl's blog post did not meet its standards - LA Ti mes

crowd of two dozen passersby who shouted at Durr.

In another apparently fresh detail, Rall said a second motorcycle officer drove up, rebuked Durr
and ordered him to let Rall go.

Durr complied, Rall wrote, but not before throwing Rail's license into the sewer.

Rall said he called the LAPD a few months later to check on his complaint and was told it had
been dismissed. He said the department "had never notified me."

The LAPD investigation

After the OpinionLA post appeared May 11, the LAPD contacted The Times to cha llenge Rall's
account.

The department had investigated Rall's complaint in January 2002, and it is standard practice to
preserve such files. The LAPD provided Rail's letter of complaint; a report by Durr 's then-
supervisor, Sgt. Russell Kilby, who investigated the allegations; and a log of calls Kilby made in
unsuccessful attempts to reach Rall.

The LAPD also provided a copy of an audio recording of the jaywalking stop made by Durr.
(Traffic officers are permitted to record interactions with civilians on personal devices, and many
do.)

0 Los Ang eles Times 1kl~ SOU ND CLOUD

Recording 1 Share

Co okie policy __________________ ________ ______ 7 _16__J

A second recording furnished by the department was made by Sgt. Kilby when he called Rail's
phone number and left a voicemail. On the tape, Kilbyis heard saying he had left earlier messages
to no avail.

httpJ/www.l atim es.comnocal/readers-replla -ed-ted-rall-documents -recor dings-20 150814-htm lstory .html 4/8

Exhibit 2 - Pag e 4
Times reaffirms decision that Ted Rall's blog post did not meet its standards - LA Times

Los Anneles Time s ,!,lte:.SOUNOCL OUO

Recording 2 Share

Cookie policy _________________________________
399
-----J

Durr's recording, made on a micro-cassette recorder and later transferred to a digital format, runs
about six minutes and includes traffic sounds and other background noise. There are extended
silences during which Durr said he was checking Rail's ID and filling out the citation.

A conversation between Durr and Rall is audible, and it is civil. Durr is not heard being rude,
''belligerent," "hostile" or "ill-tempered," as Rall has asserted. The officer is heard calmly answering
Rail's questions.

Neither man is heard to raise his voice at any point . Nor does Rall express any complaints about
how is he being treated.

Early in the encounter, Durr asks Rall to remove his ID from his wallet. Later, after he has filled
out the citation, Durr says: "I need you to go ahead and sign .... You're not admitting guilt."

Soon after, the officer says: "Here's your license back."

About halfway through the recording, faint voices can be heard in the background for about a
minute and a half. The comments are unintelligible on the LAPD tape.

The recording ends on a seemingly friendly note . Rall appears to ask the officer if he can
recommend any restaurants in th e area. Durr responds that he is new to the neighborhood and
unfamiliar with "the local eat eries."

Durr is then heard to say: "All right, have a good day."

Here is the full LAPD tran script.

Times reporter Paul Pringle interviewed Durr in July. The officer said h e remembered the
encounter because it resulted in a complaint against him and an investigation.

Durr said he had not roughed up Rall or h andcuffed him - in his entire career, he said, he had
never handcuffed anyone for jaywalking. Durr also said that no second officer ever appear ed on
the scene, and that ther e was no crowd of shouting onlookers .

http11www.latimes.comnocal/ readers-repll a-eo- teo-rall-doc uments- recordings-20 150814-htmlstory.htm l 518

Ex hibi t 2 - Page 5
Tim es reaffirm s decisi on that Ted Rall 's blog post did not meet its standard s - LA T imes

He said the encounter was free of rancor and he was surprised when Rall filed a complaint.

Kilby, now retired, said in a separate interview that his investigation found nothing to support
Rail's allegations. He described Durr as "a non-problem officer," "a nice guy" and "a hard worker."

Rall's explanation

Pringle contacted Rall and sent him copies of the documents provided by the LAPD and a copy of
Durr's audio recording.

In two interviews, Rall told Pringle that he stood by his May 11 blog post and th at Durr was lying.
He verified that the voice he ard on the tape was his but asserted that the recording was of such
poor quality that it could not be used to challenge his account.

He said the tap e "only captur es a part of what's going on" and that Durr might have been
"muffling " the recorder at key moments to conceal abusive behavio r.

Rall said he left his most serious allegations against Durr out of his complaint to th e LAPD because
he did not "want it to become a big deal."

"I did not want that officer, I did not want the LAPDin general, to feel tha t I wa s declaring war
against them, " he said.

Rall was asked why he didn't complain to Durr during the encounter about being mistreated. Rall
said he would never complain to a policeman in such circumstances for fear that the officer might
arrest him, "disappear" him in a jail cell for several days without filing charg es, or even kill him .

"Did I think that guy was going to kill me right there and then?" Rall said. "I didn't know. I don't
know ."

As to why he wrote repeatedly that the LAPDnever followed up on his complain t, Rall said he did
not receive any phone messages from police. He did acknowledge receiving the letter from then-
Chief Parks.
All egations 'UNFOUNDED ' (p. I )

·. ._-:}/:.;,.,;•:,: •:;:. :~=:fn .. · ·r ] ~~ - IT~ ;-z~~ ..ut. ·:· . .:-~:£.;;.~.fE,::r~ 1:..
._-
:i-.r-:.,::fi
-::r:.....:ef:f...~· t - •;r:: .., r~~:~ lIT~e~-r'-.: • ::- .
:.::f
~:r-c.:.~~~
--:r: :·:_;.7"r~:.°
;?:..r~:_~~u "0~~::
.r•-==
::::=':=-=~-
-.:_::::~
,~§:~-~====
~~~;::::==::-::·._:.:·~
-,C-~r.,..~::
r~~-:.~~~-=--:..~
.:;;:..
: ::-..
·.:¾ ..::-..-
.-:--=
-~-·.:.:..;.----- -· .... -

View entire document with Docun1cn1C loud

Pringle also asked Rall to explain his apparently friendly exchange with Durr after the citation was

http:1/www.latimes .com nocal/readers-replla -ed-ted-rall-documents- rec°'dings-201508 14-htm l st°'y .htm l 6/8

Exhibit 2 - Page 6
Times reaffirms decision that Ted Rall's blog post did not meet its standards· LA Times

issued, in which he asked the officer to recommend a restaurant in the area.

Rall said he had been "traumatized" by the incident and likened his behavior to that of "rape
victims calling their rapist back, and - you know, like, days later - and wanting to get back
together ."

Rall against the tape

Since then, Rall has attacked The Times in Web posts and media interviews, accusing the paper of
knuckling under to pressure from the LAPDto discredit a critic.

He has taken aim at Durr's recording, contending that the LAPDtra nscript is incomplete and that
faintly audible background noises bolster his account.

Rall said he had Post Haste Digital, a Los Angeles company that does sound work for the
entertainment industry, enhance the recording. Rall maintains that on the enhanced version, two
women can be heard midway through the recording complaining that Rall was handcuffed.

Rall said the women were part of a crowd of people who protested his treatment. He has
published a transcript that he says is consistent with this claim.

In a Web post, Rall and a co-author wrote that six unidentified "audio experts " - including both
amateurs and professionals, according to the post - said they believed the recording had been
spliced in places.

Commander Andrew Smith, the LAPD spokesma n, said the department's audio specialists
ana lyzed the tape to determine whether Durr might have turned the recorder off and then on
again to avoid recording parts of th e encounter. They found no indication that he had done so,
Smith said.

Smith said LAPD experts lat er enhanced the recording and could not hear anyone comp lain about
handcuffs. They found no indication that the tape was spliced or otherwise altered, he said.

The Times had the recording analyzed by two leading experts in audio and video forensics.

Edward J. Primeau of Rochester Hills, Mich., has worked in th e field for more than 30 years and
has testified in numerous legal proceedings, including in criminal trials for both the prosecution
and defense.

Primeau said that voices h eard in th e background on Rall's enhanced version are mostly
unintelligible, and that he did not detect any mention of handcuffs. He said Rall's transcript was
"not accurate."

http://www.latimes.comnocal/readers -r ep/la -ed-ted-rall - documents- recordings -20150814-html story.htm l 7/8

Exhibit 2 - Page 7
Times reaffirms decisi on that Ted Rall's blog post did not meet its standards - LA Tim es

Primeau performed a second analysis to determine whether the LAPD recording had been altered.
He said that by studying sound-wave patterns and other data, he concluded "beyond a reasonable
degree of scientific certainty " that the tape had not been spliced or otherwise edited.

Catalin Grigoras, director of the National Center for Media Forensics at the University of Colorado
Denver, also analyzed the recording for The Times. Grigoras, an electrical engineer, has consulted
in criminal cases for both the prosecution and defense and has published numerous peer-reviewed
articles on how to authenticate and enhance recordings.

Grigoras said his analysis detected no reference to handcuffs. He said a man and a woman can be
heard speaking in the background at one point, but only a few of their words are intelligible.

Grigoras said the man and woman appear to be having a conversation unrelated to the jaywalking
stop.

"It is obvious the police officer is not part of that conversation," he said.

The Times' conclusions

The Times continues to have serious questions about the accuracy of Rall's blog post.

His accounts of the jaywalking stop have changed over time in significant respects.

In his letter of complaint to the LAPD, written within days of the incident, he did not say that Durr
threw him against a wall. He did not say that the officer handcuffed him or roughed him up. He
did not say that a crowd of protesters gathered or that a second officer interceded and ordered
Durr to let him go.

No version of the recording, including Rail's enhanced one, supports the cartoonist 's allegations
that Durr was violent, hostile, rude and belligerent.

Goldberg, the editorial page editor, said that in light of all the available information , The Times
stands by its note to readers and its judgment that Rail's May 11 blog post should not have been
published.

Copyrig ht © 2 016 , Los Angeles Tim es

http://www.latimes.comn ocaJ/readefs- rep/l a-ed-ted- rall- docum enls-r ecordings-20150814-htmlstory .html 8/8

Exhibi t 2 - Pa ge 8