CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Pursuant to California Rule of Court 8.208, Defendants and

Respondents Austin Beutner, Nicholas Goldberg, Paul Pringle,

Deirdre Edgar, tronc, Inc. (f/k/a Tribune Publishing Company),

Tribune 365 LLC, Los Angeles Times Communications LLC, and

Tribune Interactive, LLC (collectively “Respondents”), hereby

certify:

Los Angeles Times Communications LLC is wholly owned

by NantMedia Holdings, LLC.

Tribune 365 LLC and Tribune Interactive, LLC are wholly

owned by tronc, Inc. (f/k/a Tribune Publishing Company), which

is publicly traded. Merrick Venture Management Holdings, LLC

and California Capital Equity, LLC own 10 percent or more of

tronc, Inc.’s stock.
TABLE OF CONTENTS

Page

I.  SUMMARY OF ARGUMENT ....................................................... 19 

II.  FACTUAL & PROCEDURAL BACKGROUND .......................... 24 

A.  The Parties. ............................................................................ 24 

B.  Rall’s Freelancing For The Times......................................... 24 

C.  Rall’s Blog Post. .................................................................... 26 

D.  The Lawsuit ........................................................................... 29 

III.  STANDARD OF REVIEW ............................................................. 30 

IV.  THE SLAPP STATUTE APPLIES TO RALL’S CLAIMS ........... 31 

A.  Rall’s Claims Arise From The Times’ Conduct In
Furtherance Of Protected Speech. ......................................... 33 

1.  The Times’ Decision Not To Publish Rall’s
Work Was An Exercise Of Its First Amendment
Rights. ........................................................................ 33 

2.  Rall Conflates The First And Second Prongs Of
The SLAPP Analysis.................................................. 40 

B.  Rall’s Claims Arise In Connection With An Issue Of
Public Interest. ....................................................................... 43 

1.  The Public Interest Requirement Must Be
Broadly Construed. .................................................... 43 

2.  Rall’s Narrow Test Is Contrary To California
Law. ............................................................................ 44 

3.  The Times’ Conduct Was Connected To
Matters Of Public Interest. ......................................... 46 

V.  RALL DID NOT DEMONSTRATE A PROBABILITY OF
PREVAILING ON HIS CLAIMS.................................................... 49 

A.  Rall’s Content Claims Were Properly Stricken. ................... 50 

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:
1.  The Times’ Articles Are Absolutely Privileged
As Fair Reports Of Official Proceedings And
Records. ...................................................................... 51 

a.  The Fair Report Privilege Applies To
The Times’ Reports About LAPD
Proceedings. .................................................... 52 

b.  Rall’s Attempts To Evade The Fair
Report Privilege Are Baseless. ....................... 59 

c.  The Privilege Applies To The Articles
As A Matter Of Law. ...................................... 70 

2.  Rall Failed To Demonstrate That Any Of The
Statements At Issue Are Actionable. ......................... 74 

a.  Rall Did Not Show That Any Statements
At Issue Are Materially False Or
Defamatory...................................................... 74 

b.  Subjective Expression In The Articles Is
Not Actionable. ............................................... 84 

3.  Rall Failed To Comply With The Retraction
Statute And Did Not Demonstrate Recoverable
Damages. .................................................................... 89 

4.  Actual Malice Is Irrelevant At This Stage. ................ 93 

5.  Rall Abandoned His Duplicative Emotional
Distress Claim. ........................................................... 94 

B.  Rall’s Publication Claims Were Properly Stricken. .............. 95 

1.  The First Amendment Protects The Times’
Absolute Right To Decide What To Publish. ............ 95 

2.  Rall’s Publication Claims Fail Because He Was
Not An Employee. .................................................... 103 

3.  Rall’s Publication Claims Fail For Other
Reasons. ................................................................... 110 

a.  Rall’s Wrongful Termination Claim Was
Properly Stricken........................................... 111 

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:
b.  Rall’s “Contract” Claims Fail Because
The Times Did Not Waive Its
Constitutional Right Of Editorial
Control. ......................................................... 115 

c.  Rall’s Labor Code § 1050 Claim Was
Properly Stricken........................................... 120 

VI.  THE TRIAL COURT SHOULD HAVE SUSTAINED
RESPONDENTS’ EVIDENTIARY OBJECTIONS ..................... 121 

VII.  CONCLUSION .............................................................................. 122 

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:
TABLE OF AUTHORITIES

Page

CASES

420 Caregivers v. City of Los Angeles,
219 Cal.App.4th 1316 (2012) ...................................................... 112, 117

AEG v. Snepp,
171 Cal.App.4th 598 (2009) ............................................................ 90, 93

ALADS v. Los Angeles Times,
239 Cal.App.4th 808 (2015) ................................................................ 112

Ali v. L.A. Focus Publication,
112 Cal.App.4th 1477 (2003) .............................................. 109, 110, 114

Ampersand Publ’g v. NLRB,
702 F.3d 51 (D.C. Cir. 2012) ......................................................... 97, 100

Argentieri v. Zuckerberg,
8 Cal.App.5th 768 (2017) ................................................................ 57, 61

Arnold v. Mutual of Omaha,
202 Cal.App.4th 580 (2011) ........................................................ 107, 108

Associated Press v. NLRB,
301 U.S. 103 (1937) ..................................................................... 100, 101

Balzaga v. Fox News,
173 Cal.App.4th 1325 (2009) .......................................................... 53, 75

Baral v. Schnitt,
1 Cal.5th 376 (2016) .............................................................................. 51

Barry v. State Bar of California,
2 Cal.5th 318 (2017) ........................................................................ 31, 37

Beaumont-Jacques v. Farmers Group,
217 Cal.App.4th 1138 (2013) ...................................................... 107, 108

Bel Air Internet v. Morales,
20 Cal.App.5th 924 (2018) .................................................................... 37

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:
Berkeley Police Ass’n v. City of Berkeley,
76 Cal.App.3d 931 (1977) ..................................................................... 61

Berkeley Police Ass’ v. City of Berkeley,
167 Cal.App.4th 385 (2008) .................................................................. 62

Blatty v. New York Times,
42 Cal.3d 1033 (1986) ................................................................... 50, 103

Braun v. Chronicle Publ’g Co.,
52 Cal.App.4th 1036 (1997) ........................................................... passim

Brodeur v. Atlas Entertainment,
248 Cal.App.4th 665 (2016) ...................................................... 45, 49, 77

Burrill v. Nair,
217 Cal.App.4th 357 (2013) ............................................................ 56, 57

California Teachers Ass’n v. Governing Board,
45 Cal.App.4th 1383 (1996) ................................................................ 112

Carter v. Escondido Union HSD,
148 Cal.App.4th 922 (2007) ................................................................ 111

Carver v. Bonds,
135 Cal.App.4th 328 (2005) ........................................................... passim

CBS v. Democratic Nat’l Comm.,
412 U.S. 94 (1973) ......................................................................... 96, 100

Christoff v. Union Pacific Railroad,
134 Cal.App.4th 118 (2005) .................................................................. 29

City of Glendale v. George,
208 Cal.App.3d 1394 (1989) ............................................................... 116

City of Moorpark v. Superior Court,
18 Cal.4th 1143 (1998) ........................................................................ 115

Clarendon America Ins. v. N. A. Capacity Ins.,
186 Cal.App.4th 556 (2010) .................................................................. 54

Claybrooks v. ABC,
898 F.Supp.2d 986 (M.D. Tenn. 2012) .................................................. 99

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:
Coastal Abstract Serv. v. First Am. Title Ins.,
173 F.3d 725 (9th Cir. 1999) ................................................................. 92

Cochran v. NYP Holdings,
58 F.Supp.2d 1113 (C.D. Cal. 1998) ..................................................... 85

Colt v. Freedom Comm’n,
109 Cal.App.4th 1551 (2003) .................................................... 68, 69, 71

Comstock v. Aber,
212 Cal.App.4th 931 (2012) ............................................................ 32, 95

Correia v. Santos,
191 Cal.App.2d 844 (1961) ................................................................... 93

Crane v. Arizona Republic,
972 F.2d 1511 (9th Cir. 1992) ........................................................ passim

Cross v. Cooper,
197 Cal.App.4th 357 (2011) .................................................................. 42

Cross v. Facebook,
14 Cal.App.5th 190 (2017) ........................................................ 30, 35, 38

Damon v. Ocean Hills Journalism Club,
85 Cal.App.4th 468 (2000) .................................................................... 43

Day v. Alta Bates,
98 Cal.App.4th 243 (2002) .................................................................... 66

Dickinson v. Cosby,
17 Cal.App.5th 655 (2017) .................................................................... 89

Doe v. Roman Catholic Archbishop,
177 Cal.App.4th 209 (2009) .................................................................. 72

Dorsey v. National Enquirer,
973 F.2d 1431 (9th Cir. 1992) ......................................................... 64, 70

DuPont Merck Pharm. v. Superior Court,
78 Cal.App.4th 563 (2000) .................................................................... 41

Dynamex Ops. West, v. Superior Court,
4 Cal.5th 903 (2018) ............................................................................ 105

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:
Eisenberg v. Alameda Newspapers,
74 Cal.App.4th 1359 (1999) .......................................... 98, 103, 114, 116

Equilon Enterprises v. Consumer Cause,
29 Cal.4th 53 (2002) .............................................................................. 31

Ferlauto v. Hamsher,
74 Cal.App.4th 1394 (1999) .................................................... 82, 84, 116

Fisher v. Larsen,
138 Cal.App.3d 627 (1982) ................................................................... 92

Foley v. Interactive Data,
47 Cal.3d 654 (1988) ................................................................... 111, 119

Four Navy Seals v. AP,
413 F. Supp. 2d 1136 (S.D. Cal. 2005) ............................................ 45, 90

Fox Searchlight Pictures v. Paladino,
89 Cal.App.4th 294 (2001) .............................................................. 40, 41

Franklin v. Dynamic Details,
116 Cal.App.4th 375 (2004) ............................................................ 79, 88

Freedom Newspapers v. Superior Court,
4 Cal.4th 652 (1992) .............................................................................. 90

Gallanis-Politis v. Medina,
152 Cal.App.4th 600 (2007) .................................................................. 36

Gang v. Hughes,
111 F.Supp. 27 (S.D. Cal. 1953) ............................................................ 92

Gates v. Discovery Communications,
34 Cal.4th 679 (2004) ...................................................................... 37, 51

Gilbert v. Sykes,
147 Cal.App.4th 13 (2007) ............................................................. passim

Gomes v. Fried,
136 Cal.App.3d 924 (1982) ................................................................... 91

Governor Gray Davis Committee v. American Taxpayers
Alliance,
102 Cal.App.4th 449 (2002) .................................................................. 41

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:
Greater L.A. Agency on Deafness v. CNN,
742 F.3d 414 (9th Cir. 2014) ........................................................... 35, 48

Green v. Cortez,
151 Cal.App.3d 1068 (1984) ..................................................... 53, 55, 58

Green v. Ralee Eng’g
19 Cal.4th 66 (1998) ............................................................................ 111

Guz v. Bechtel Nat’l,
24 Cal.4th 317 (2000) .................................................................. 115, 119

Hall v. Time Warner,
153 Cal.App.4th 1337 (2007) ................................................................ 44

Handelsman v. San Francisco Chronicle,
11 Cal.App.3d 381 (1970) ............................................................... 68, 71

Hansen v. CDCR,
171 Cal.App.4th 1537 (2008) ........................................................ 42, 104

Hausch v. Donrey,
833 F.Supp. 822 (D. Nev. 1993) .................................................. 100, 101

Hawran v. Hixson,
209 Cal.App.4th 256 (2012) .................................................................. 63

Hayward v. Watsonville Register-Pajaronian,
265 Cal.App.2d 255 (1968) ....................................................... 53, 54, 64

Healthsmart Pacific v. Kabateck,
7 Cal.App.5th 416 (2016) ............................................................... passim

Hecimovich v. Encinal School Parent Teacher Org.,
203 Cal.App.4th 450 (2012) ............................................................ 42, 43

Holmes v. Petrovich Dev. Co., LLC,
191 Cal.App.4th 1047 (2011) ................................................................ 74

Howard v. Antilla,
294 F.3d 244 (1st Cir. 2002) .................................................................. 86

Howard v. Oakland Tribune,
199 Cal.App.3d 1124 (1988) ..................................................... 53, 55, 59

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:
Hughes v. Pair,
46 Cal.4th 1035 (2009) .......................................................................... 95

Hunter v. CBS,
221 Cal.App.4th 1510 (2013) ......................................................... passim

Ingels v. Westwood One,
129 Cal.App.4th 1050 (2005) ................................................................ 36

Integrated Healthcare Holdings, v. Fitzgibbons,
140 Cal.App.4th 515 (2006) ................................................................ 116

J-M Manufacturing v. Phillips & Cohen,
247 Cal.App.4th 87 (2016) ........................................................ 52, 65, 71

Jackson v. AEG Live,
233 Cal.App.4th 1156 (2015) ...................................................... 105, 108

James v. San Jose Mercury News,
17 Cal.App.4th 1 (1993) ........................................................................ 85

Janklow v. Newsweek,
788 F.2d 1300 (8th Cir. 1986) ............................................................... 89

Jensen v. Hewlett Packard,
14 Cal.App.4th 958 (1993) .................................................................... 92

Jordan-Benel v. Universal Studios,
859 F.3d 1184 (9th Cir. 2017) ............................................................. 103

Kahn v. Bower,
232 Cal.App.3d 1599 (1991) ................................................................. 51

Kelly v. General Telephone,
136 Cal.App.3d 278 (1982) ................................................................. 120

Koch v. Goldway,
817 F.2d 507 (9th Cir. 1987) ................................................................. 95

Kronemyer v. IMDB,
150 Cal.App.4th 941 (2007) ............................................................ 35, 48

LBPOA v. City of Long Beach,
59 Cal.4th 59 (2014) ............................................................................ 112

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:
Lieberman v. KCOP,
110 Cal.App.4th 156 (2003) .................................................................. 36

Lockheed Aircraft v. Superior Court,
28 Cal.2d 481 (1946) ........................................................................... 113

Lyle v. Warner Bros.,
38 Cal.4th 264 (2006) ............................................................................ 97

Macias v. Hartwell,
55 Cal.App.4th 669 (1997) .................................................................... 50

McClatchy Newspapers v. Superior Court,
189 Cal.App.3d 961 (1987) ............................................................ passim

McDermott v. Ampersand Publ’g,
2008 WL 8628728 (C.D. Cal. May 22, 2008) ..................................... 101

McDermott v. Ampersand Publ’g,
593 F.3d 950 (9th Cir. 2010) ............................................... 21, 34, 96, 98

McGarry v. University of San Diego,
154 Cal.App.4th 97 (2007) .................................................................... 48

Medico v. Time, Inc.,
643 F.2d 134 (3d Cir. 1981) .................................................................. 72

Melaleuca v. Clark,
66 Cal.App.4th 1344 (1998) .................................................................. 74

Miami Herald v. Tornillo,
418 U.S. 241 (1974) ......................................................................... 34, 96

Milkovich v. Lorain Journal,
497 U.S. 1 (1990) ................................................................................... 84

Mission Insurance v. Workers’ Comp. Appeals Bd.,
123 Cal.App.3d 211 (1981) ................................................................. 107

Mitchell v. International Association of Machinists,
196 Cal.App.2d 796 (1961) ................................................................. 113

Moldea v. New York Times,
22 F.3d 310 (D.C. Cir. 1994) ................................................................. 85

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:
Morris v. Nat’l Federation of The Blind,
192 Cal.App.2d 162 (1961) ................................................................... 93

Moyer v. Amador Valley Jt. Union High School Dist.,
225 Cal.App.3d 720 (1990) ................................................................... 85

Navellier v. Sletten,
106 Cal.App.4th 763 (2003) ................................................................ 121

Navellier v. Sletten,
29 Cal.4th 82 (2002) .................................................................. 31, 33, 41

Neighbours v. Buzz Oates Enterprises,
217 Cal.App.3d 325 (1990) ................................................................... 32

Nelson v. McClatchy Newspapers,
936 P.2d 1123 (Wash. 1997) ................................................. 98, 101, 115

New York Times v. Sullivan,
376 U.S. 254 (1964) ............................................................................. 102

Newspaper Guild of Greater Philadelphia, Local 10 v. NLRB,
636 F.2d 550 (D.C. Cir. 1980) ............................................................... 98

Nygård v. Uusi-Kerttula,
159 Cal.App.4th 1027 (2008) .................................................... 43, 48, 93

O’Shea v. General Tel.,
193 Cal.App.3d 1040 (1987) ............................................................... 120

Ollman v. Evans,
750 F.2d 970 (D.C. Cir. 1984) ............................................................... 86

Opdyk v. California Horse Racing Bd.,
34 Cal.App.4th 1826 (1995) .................................................................. 32

PPOA v. Superior Court,
240 Cal.App.4th 268 (2015) .......................................................... 47, 112

Pasadena Star-News v. Superior Court,
203 Cal.App.3d 131 (1988) ................................................................... 46

Passaic Daily News v. NLRB,
736 F.2d 1543 (D.C. Cir. 1984) ........................................................... 100

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:
Paterno v. Superior Court,
163 Cal.App.4th 1342 (2008) .......................................................... 70, 71

Paulus v. Bob Lynch Ford,
139 Cal.App.4th 659 (2006) .................................................................. 94

People v. Baniqued,
85 Cal.App.4th 13 (2000) ...................................................................... 32

People v. Bonilla,
41 Cal.4th 313 (2007) ............................................................................ 32

Pierce v. San Jose Mercury News,
214 Cal.App.3d 1626 (1989) ................................................................. 71

Porter v. Guam Publ’ns,
643 F.2d 615 (9th Cir. 1981) ................................................................. 53

POST v. Superior Court,
42 Cal.4th 278 (2007) .................................................................... 47, 112

Pridonoff v. Balokovich,
36 Cal.2d 788 (1951) ............................................................................. 92

Partington v. Bugliosi,
56 F.3d 1147 (9th Cir. 1995) ........................................................... 86, 88

Ramona Unified School Dist. v. Tsiknas,
135 Cal.App.4th 510 (2005) .................................................................. 33

Reed v. Gallagher,
248 Cal.App.4th 841 (2016) .................................................................. 75

Reeves v. ABC,
719 F.2d 602 (2d Cir. 1983) .................................................................. 60

Reid v. Google,
50 Cal.4th 512 (2010) ............................................................................ 73

Rivera v. First DataBank,
187 Cal.App.4th 709 (2010) ........................................................... passim

Rope v. Auto-Chlor Sys. of Wash.,
220 Cal.App.4th 635 (2013) ................................................................ 111

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:
Rudnick v. McMillan,
25 Cal.App.4th 1183 (1994) .................................................................. 85

S. G. Borello & Sons, v. Dep’t of Ind. Rel.,
48 Cal.3d 341 (1989) ................................................................... 105, 106

San Diegans for Open Gov’t v. SDSU Research Foundation,
13 Cal.App.5th 76 (2017) (review granted, Jan. 24, 2018) ................... 34

Sarver v. Chartier,
813 F.3d 891 (9th Cir. 2016) ................................................................. 45

Schaffer v. County of San Francisco,
168 Cal.App.4th 992 (2008) ................................................................ 117

Seelig v. Infinity Broadcasting,
97 Cal.App.4th 798 (2002) ........................................................ 43, 48, 84

Sheley v. Harrop,
9 Cal.App.5th 1147, 1167 (2017) .......................................................... 34

Shulman v. Group W Productions,
18 Cal.4th 200 (1998) .................................................................... 46, 103

Simmons v. Allstate,
92 Cal.App.4th 1068 (2001) ................................................................ 117

Sinatra v. Chico Unified School District,
119 Cal.App.4th 701 (2004) ................................................................ 112

Sipple v. Foundation for Nat. Progress,
71 Cal.App.4th 226 (1999) ............................................................. passim

Smedley v. Capps, Staples, Ward, Hastings and Dodson,
820 F.Supp. 1227 (N.D. Cal. 1993) ..................................................... 113

Smith v. California,
361 U.S. 147 (1959) ............................................................................... 96

Smith v. Press Democrat,
2011 U.S. Dist. LEXIS 121449 (N.D. Cal. Oct. 20, 2011) ................... 70

Soukup v. Law Offices of Herbert Hafif,
39 Cal.4th 260 (2006) .......................................................................... 104

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:
Summit Bank v. Rogers,
206 Cal.App.4th 669 (2012) .................................................................. 44

Sylmar Air Conditioning v. Pueblo Contracting Svcs.,
122 Cal.App.4th 1049 (2004) .............................................................. 117

Taheri Law Group v. Evans,
160 Cal.App.4th 482 (2008) .................................................................. 37

Tamkin v. CBS,
193 Cal.App.4th 133 (2011) ............................................................ 36, 44

Taus v. Loftus,
40 Cal.4th 683 (2007) .......................................................................... 121

Taylor v. Viacom,
2018 U.S. Dist. LEXIS 95391 (C.D. Cal. 2018) ................................... 36

Terry v. Davis Community Church,
131 Cal.App.4th 1534 (2005) ................................................................ 45

Thomas v. Los Angeles Times,
189 F.Supp.2d 1005 (C.D. Cal. 2002) ............................................. 78, 87

Tieberg v. Unemployment Ins. App. Board,
2 Cal.3d 943 (1970) ............................................................................. 108

Tuszynska v. Cunningham,
199 Cal.App.4th 257 (2011) .................................................................. 38

Varisco v. Gateway Science & Eng.,
166 Cal.App.4th 1099 (2008) ...................................... 104, 105, 106, 108

Vergos v. McNeal,
146 Cal.App.4th 1387 (2007) ................................................................ 36

Vivian v. Labrucherie,
214 Cal.App.4th 267 (2013) .................................................................. 37

Vogel v. Felice,
127 Cal.App.4th 1006 (2005) .......................................................... 75, 77

Walker v. Boeing,
218 F.Supp.2d 1177 (C.D. Cal. 2002) ................................................. 120

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:
Wilson v. CNN,
6 Cal.App.5th 822 (2016) (review granted, March 1,
2017) ...................................................................................................... 39

Wong v. Jing,
189 Cal.App.4th 1354 (2010) ................................................................ 41

STATUTES

California Public Records Act ......................................................... 27, 62, 73

Civil Code
§ 47(b) ............................................................................................ 55, 120
§ 47(d) ............................................................................................. passim
§ 47(d)(1) ................................................................................... 52, 54, 61
§ 47(d)(2) ............................................................................................... 61
§ 47, subd. (d) ........................................................................................ 60
§ 48a ..................................................................................... 89, 90, 91, 93
§ 48a(d)(2) ............................................................................................. 90

Code of Civil Procedure
§ 425.16........................................................................................... passim
§ 425.16(a) ............................................................................................. 31

Labor Code
§ 1050................................................................................... 103, 120, 121
§ 1054................................................................................................... 121
§ 1101................................................................................... 112, 113, 115
§ 1102................................................................................................... 112
§ 1102.5.......................................................................... 29, 104, 110, 111
§ 2922................................................................................................... 111
§ 3353................................................................................................... 104

National Labor Relations Act .................................................................... 101

Vehicle Code § 40000.15 ........................................................................... 82

RULES

California Rules of Court 8.204(a)(1)(B) .................................................... 32

CONSTITUTIONAL PROVISIONS

California Constitution Article I, § 2........................................................... 51

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:
United States Constitution
First Amendment ............................................................................ passim
Fourteenth Amendment ......................................................................... 51

OTHER AUTHORITIES

Restatement (2d) of Torts § 558 (1977)....................................................... 50

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:
TO THE HONORABLE PRESIDING JUSTICE AND

ASSOCIATE JUSTICES OF THE SECOND APPELLATE

DISTRICT COURT OF APPEAL, DIVISION EIGHT:

Defendants/Respondents Austin Beutner, Nicholas

Goldberg, Paul Pringle, Deirdre Edgar, tronc, Inc., Tribune 365

LLC, Los Angeles Times Communications LLC, and Tribune

Interactive, LLC (“Respondents”), respectfully submit this brief

in support of the trial court’s orders striking Plaintiff/Appellant

Frederick Theodore Rall III’s (“Rall”) Complaint pursuant to

C.C.P. § 425.16 ( “SLAPP” statute), and request that this Court

affirm those orders in their entirety.

I. SUMMARY OF ARGUMENT

The trial court saw this litigation for what it is – a

retaliatory SLAPP suit brought to punish a newspaper for its

editorial decisions. Rall, a well-known editorial cartoonist and

controversial political commentator, wrote a blog post for The Los

Angeles Times’ (“The Times”) website in 2015, claiming he had

been the victim of police brutality during a jaywalking stop a

decade earlier. The Times later obtained LAPD records –

including Rall’s contemporaneous misconduct complaint and a

recording of the encounter – that showed glaring discrepancies

19
with his account, including Rall asking the supposedly abusive

officer for restaurant recommendations. 1/A.A./241-268

(Appellant’s Appendix). After investigating further, including

questioning Rall, The Times concluded that it would no longer

publish his work. The Times then published two articles

disclosing to readers the police records, Rall’s accounts, and The

Times’ conclusion that there were “serious questions about the

accuracy of Rall’s blog post.” 1/A.A./75.

Furious at being held accountable for what was, at

minimum, a gross exaggeration about his experience with the

LAPD, Rall sued twelve defendants, including The Times and

four individual journalists, claiming that the Articles defamed

him; he also asserted so-called “employment” claims against the

corporate defendants, even though he admitted that his

contributions to The Times were on a “freelance” basis. 1/A.A./39.

Rall’s “employment” claims do not allege any

discrimination, harassment, or pattern of conduct; instead, they

arise from The Times’ editorial decision to stop publishing Rall’s

work. As Rall’s own attorney admitted, the “employment” claims

are merely a distraction; this is a “standard defamation” case.

R.A.0024 (Respondents’ Appendix).

20
The trial court properly struck Rall’s meritless Complaint

in its entirety. As a threshold matter, Rall concedes that his

claims based on the Articles (the “Content Claims”) arise from

the exercise of free speech within the scope of the SLAPP statute.

(Section IV.A.) Rall’s remaining claims – labeled as

“employment” and “contract” claims – also fall within the SLAPP

statute, because they all arise directly from The Times’

constitutionally-protected editorial decision to stop publishing

Rall’s work. E.g., McDermott v. Ampersand Publ’g, 593 F.3d 950,

962 (9th Cir. 2010) (First Amendment protects “publisher’s choice

of writers [that] affects the expressive content of its newspaper”);

Hunter v. CBS, 221 Cal.App.4th 1510, 1522 (2013) (editorial

hiring decision is conduct in furtherance of free speech protected

by SLAPP statute); Section IV.A.

The Articles related to matters of substantial public

interest easily within the broad confines of the SLAPP law:

allegations of police misconduct raised by Rall, in which he

sought to interject his own alleged experience with the LAPD into

a controversy before the Los Angeles City Council, and a wider

national debate about policing methods. E.g., 1/A.A./237-239.

Rall inserted himself into the contentious public debate, using

21
The Times to reach its readership, in an attempt to portray

himself as a victim of police abuse. The inconsistencies between

Rall’s published account and official LAPD records also were

matters of substantial public interest, given the critical need for

news organizations to maintain public trust and be accountable

to the community.

Because the SLAPP statute applied, the burden fell on Rall

to present admissible evidence demonstrating a probability of

prevailing on his claims. (Section V.) He failed to meet his

burden.

First, Rall’s Content Claims (First, Second, Third, and

Eighth Causes of Action) were properly stricken, because the

privilege for fair reports about official government records and

proceedings encompass the Articles’ discussion about Rall’s

jaywalking encounter with LAPD and subsequent police

investigation. (Section V.A.1.) The trial court also properly

found that the complained-of statements are either substantially

true; subjective conclusions based on disclosed facts; and/or not

defamatory as a matter of law. (Section V.A.2.a.)

Second, Rall’s Content Claims fail because he did not

demand a retraction of most of the statements at issue, and did

22
not meet his burden of pleading or substantiating recoverable

damages. (Section V.A.3.)

Third, the trial court properly rejected Rall’s Publication

Claims (Fourth, Fifth, Sixth, Seventh, and Eighth Causes of

Action) because regardless of how they are styled, these claims

attempt to impose liability for The Times’ editorial decision to

stop publishing Rall’s work, and for The Times’ publication of

Articles advising readers about the discrepancies between Rall’s

account and the LAPD records that led to its decision. Federal

and state constitutional law prohibit such interference with

editorial functions and speech activities of a news organization.

(Section V.B.1.)

Fourth, Rall’s Publication Claims presuppose an

employment relationship that did not exist. Rall was a freelance

writer and cartoonist, not an employee. He cannot assert claims

based on rights given to employees. (Section V.B.2.)

Fifth, the Publication Claims independently fail, because

Rall did not plead or offer evidence to prove the elements of those

claims. (Section V.B.3.)

Finally, Rall’s OB does not even mention his emotional

distress claim, thereby abandoning any challenge to the trial

23
court’s order striking this meritless, duplicative cause of action.

(Section V.A.5.)

For all these reasons, Respondents respectfully request

that this Court affirm the trial court’s rulings striking Rall’s

Complaint in its entirety.

II. FACTUAL & PROCEDURAL BACKGROUND

A. The Parties.

Although Rall now tries to downplay his prominence (OB

47, 81), his Complaint says he is “a New York Times Best-selling

author of 19 books” and “one of the most widely syndicated

cartoonists in the United States.” 1/A.A./39. Rall has boasted

about being an influential public figure, including for

publications about police issues; Rall claims his political cartoons

have been “especially influential.” 3/A.A./678-679, 684. Even

Rall’s LAPD misconduct complaint that was the subject of the

blog post at issue here touted his celebrity “as both a talk-show

host on KFI Radio and as a nationally-syndicated editorial

cartoonist and columnist.” 1/A.A./256; 7/A.A./2004.

B. Rall’s Freelancing For The Times.

The Times published Rall’s work on a freelance basis from

2009 to July 2015. 1/A.A./39. Rall did not have an agreement to

24
provide freelance services for any particular time period, nor was

he constrained from working for other publications

simultaneously. 1/A.A./271; 3/A.A./716. While freelancing for

The Times, Rall published at least four books (1/A.A./330);

worked for a website called ANewDomain (1/A.A./295;

3/A.A./699); drew cartoons for the Daily Kos (1/A.A.340-350); and

received foundation funds for his work (7/A.A./724-725).

Rall, who is based in New York, did not work at The Times’

Los Angeles office, and The Times did not provide any of his

supplies. 1/A.A./271. Rall typically chose the subjects of his

cartoons and blog posts, and apart from setting publication

deadlines, The Times did not exercise control over when, where,

or how Rall prepared his work. Id. Rall did not have a

supervisor or performance reviews at The Times. 1/A.A./271-272.

The Times paid Rall for each item published, and did not make

payroll deductions for him. 1/A.A./271, 297-314.

Rall’s own description of the relationship, in an August 3,

2015 email to Mr. Goldberg, stated that he was “a freelance

cartoonist earning $200 per cartoon plus $100 per blog.”

1/A.A./282.

25
C. Rall’s Blog Post.

On May 11, 2015, The Times published a blog post by Rall

on the latimes.com website titled, “LAPD’s Crosswalk crackdown:

Don’t police have something better to do?” 1/A.A./40-41, 63-64.

Commenting about the LAPD’s pedestrian-ticketing practices

and a related City Council inquiry, Rall described being ticketed

for jaywalking himself, more than a decade earlier. Id. Rall

portrayed it as a violent encounter:

All of a sudden, a motorcycle officer zoomed over,

threw me up against the wall, slapped on the cuffs,

roughed me up and wrote a ticket. It was an ugly

scene, and in broad daylight it must have looked like

one, because within minutes there were a couple of

dozen passersby shouting at the cop.

1/A.A./63. Rall claimed the encounter ended when the officer

“threw [his] driver’s license into the sewer.” Id. Rall also

asserted that although he complained about the officer’s conduct,

the LAPD dismissed his complaint without ever notifying him.

Id.

After the blog was published, LAPD Chief Charlie Beck and

then-LAPD Commander Andrew Smith met with Defendant

26
Austin Beutner, who was The Times’ publisher. 1/A.A./231.

Commander Smith provided Beutner with official LAPD records

documenting the incident, including the jaywalking ticket issued

to Rall by LAPD Officer Willie Durr on October 3, 2001; Rall’s

October 13, 2001 misconduct complaint against Officer Durr; an

audio recording Officer Durr made of the encounter and

transcript prepared by the LAPD Internal Affairs Group; an

audio recording of voicemail messages LAPD Sgt. Russell Kilby

left during the internal investigation into Rall’s complaint; and a

letter from then-LAPD Chief Bernard C. Parks to Rall, notifying

him of the LAPD’s findings. 1/A.A./231-232.

Defendant Paul Pringle, a Times reporter, interviewed Rall

and provided him with copies of the LAPD records. 6/A.A./1430-

1465.1 On July 28, 2015, The Times published an Editor’s Note

discussing discrepancies between the records and the blog post

and presenting Rall’s explanations, before concluding that “the

recording and other evidence provided by the LAPD raise serious

questions about the accuracy of Rall’s blog post.” 1/A.A./66. The

1The LAPD provided Rall with copies of these same official
records pursuant to a California Public Records Act (“CPRA”)
request. 3/A.A./718; 7/A.A./1998-2018.

27
Note advised readers that “Rall’s future work will not appear in

The Times.” Id.

Rall responded with an aggressive public relations

campaign. The ensuing controversy over his blog post and The

Times’ decision to stop publishing Rall’s work drew extensive

media coverage. 3/A.A./699-715; 6/A.A./1486-7/A.A./1954.

On August 14, 2015, an attorney acting for Rall sent a

letter to The Times that purported to request a retraction, but no

allegedly defamatory statements were identified. 1/A.A./275.

On August 19, 2015, The Times published a second article,

titled “Times reaffirms decision that Ted Rall’s blog post did not

meet its standards.” 1/A.A./68-75. The Article discussed the

LAPD records in detail, and provided readers with links to them.

Id. The Times included Rall’s lengthy response, and linked to an

article Rall wrote defending his blog post, which contained a

version of the LAPD audio that Rall claimed had been

“enhanced.” Id.

On September 4, 2015, Rall emailed several individuals at

The Times, demanding a retraction of several statements in the

August 19 article. 1/A.A./277-279.

28
D. The Lawsuit

On March 24, 2016, Rall filed this lawsuit. 1/A.A./43-51.

He sued every defendant for defamation, “blacklisting,” and

emotional distress based on the content of the Articles. 1/A.A./54-

55, 60. He also sued the corporate defendants for breach of

contract, blacklisting, and violations of Labor Code § 1102.5,

based solely on The Times’ decision to stop publishing his work.

1/A.A./56-60.

Respondents filed SLAPP Motions on May 13, 2016.

1/A.A./112. More than four months later, Rall moved ex parte to

take discovery, which the trial court denied. R.A.0005-0008. A

duplicative discovery application brought several months later

also was denied. R.A.0010-0012.2

On June 21, 2017, the trial court granted the Individual

Defendants’ SLAPP Motion, striking all of Rall’s claims against

them. 18/A.A./5910. Rall then filed an untimely peremptory

challenge, unsuccessfully trying to prevent the same judge from

adjudicating the corporate defendants’ pending SLAPP Motion.

2 Rall has not challenged these rulings. Christoff v. Union
Pacific Railroad, 134 Cal.App.4th 118, 125 (2005) (“appellant’s
failure to discuss an issue in its opening brief forfeits the issue on
appeal”).

29
R.A.0014. Rall separated from his counsel, then sought

continuances on various grounds, including to seek new

representation. R.A.0014-0037. After granting one continuance,3

the trial court heard the Times Defendants’ SLAPP Motion on

July 14, 2017. R.A.0043.

On August 4, 2017, the trial court granted the Times

Defendants’ SLAPP Motion in its entirety. 18/A.A./5918.4 Rall

filed his Notice of Appeal on August 18, 2017. 18/A.A./5934.

III. STANDARD OF REVIEW

This Court’s review of whether the Complaint falls within

the scope of the SLAPP statute, and whether Rall established a

probability of prevailing, is de novo. Cross v. Facebook, 14

Cal.App.5th 190, 199 (2017).

3Rall fails to mention that the trial court delayed the
second SLAPP hearing at his request. Compare OB 26 with
R.A.0017. He waived any challenge to the court’s decision not to
grant additional continuances. OB 26 n.6.
4 The trial court subsequently issued a Revised Order
clarifying that its ruling applied to both the Times Defendants’
Motion and a SLAPP Motion brought by defendant Tribune
Media Company (“Tribune Media”). R.A.0039-0060. Rall has
dismissed his appeal as to Tribune Media.

30
IV. THE SLAPP STATUTE
APPLIES TO RALL’S CLAIMS

The California Legislature enacted C.C.P. § 425.16 to

quickly dispose of claims targeting the exercise of free speech

rights and acts in furtherance of those rights. Braun v. Chronicle

Publ’g Co., 52 Cal.App.4th 1036, 1042 (1997). The SLAPP statute

was amended in 1997 to require that it “shall be construed

broadly.” C.C.P. § 425.16(a).

The California Supreme Court consistently has upheld the

statute’s broad construction, rejecting attempts to impose limits

on Section 425.16 that are unsupported by its language or

history. E.g., Navellier v. Sletten, 29 Cal.4th 82, 91 (2002)

(excluding contract and fraud claims from statute’s ambit “would

contravene the Legislature’s express command that section

425.16 ‘shall be construed broadly’”); Equilon Enterprises v.

Consumer Cause, 29 Cal.4th 53, 61 (2002) (rejecting “intent to

chill” requirement); Barry v. State Bar of California, 2 Cal.5th

318, 321 (2017) (refusing to limit fee recovery).

The trial court properly found that all of Rall’s claims fall

within the broad parameters of the SLAPP statute. 18/A.A./5914-

5915, 5927-5931; R.A.0052-0058. Rall does not challenge the

31
court’s decision that his Content Claims arise from pure speech,

within the protections of the SLAPP statute. OB 40-49.5 This

ruling was correct. The Times exercised its First Amendment

rights6 in connection with matters of public interest, because the

Articles discussed issues under consideration or review in an

“official proceeding authorized by law” (C.C.P. § 425.16(e)(2))7

and because the subject matter involved issues of public interest

(id. § 425.16(e)(4)); Section IV.A-B, infra.

5 The headings in Rall’s OB expressly limit his arguments
about prong one of the statute to his so-called “employment
claims.” OB 40-49. “The failure to head an argument as required
by [the Rules of Court] constitutes a waiver.” Opdyk v. California
Horse Racing Bd., 34 Cal.App.4th 1826, 1830 n.4 (1995); Cal. R.
Ct. 8.204(a)(1)(B). Rall cannot challenge rulings for the first time
on reply. People v. Baniqued, 85 Cal.App.4th 13, 29 (2000)
(argument typically deemed waived if not raised until reply);
Neighbours v. Buzz Oates Enterprises, 217 Cal.App.3d 325, 335
n.8 (1990) (rejecting argument that was “not raised until the
reply brief”); People v. Bonilla, 41 Cal.4th 313, 349-50 (2007)
(party “forfeited” issue by not raising before reply).
6 Claims against media defendants arising from the content
of publications fall squarely within the scope of the SLAPP
statute. E.g., Carver v. Bonds, 135 Cal.App.4th 328, 342-43
(2005) (newspaper article).
7 E.g., Braun, 52 Cal.App.4th at 1048-1049 (newspaper
report about official proceeding falls under Subsection (e)(2));
Comstock v. Aber, 212 Cal.App.4th 931, 941-42 (2012) (police
records are official proceedings).

32
The trial court also properly found that Rall’s Publication

Claims were covered by the statute, because all of them arose

from The Times’ decision to stop publishing Rall’s work. Id.

A. Rall’s Claims Arise From The Times’ Conduct In
Furtherance Of Protected Speech.

1. The Times’ Decision Not To Publish Rall’s Work Was
An Exercise Of Its First Amendment Rights.

Section 425.16(e)(4) applies the SLAPP statute to “conduct

[1] in furtherance of the exercise of … the constitutional right of

free speech [2] in connection with a public issue or an issue of

public interest.” Rall’s Publication Claims all arise directly from

The Times’ decision about what content to publish, which is

expressive conduct protected by the First Amendment.

Rall cannot evade the SLAPP statute with “artifices of

pleading.” Ramona Unified School Dist. v. Tsiknas, 135

Cal.App.4th 510, 519 (2005). This Court must “disregard [the

plaintiff’s] labeling” and “examine the principal thrust or

gravamen of a plaintiff’s cause of action to determine whether the

anti-SLAPP statute applies.” Id. at 519-20, 522. The

“definitional focus is not the form of the plaintiff’s cause of action,

but rather, the defendant’s activity that gives rise to [its]

asserted liability.” Navellier, 29 Cal.4th at 91.

33
The California Supreme Court has rejected attempts to

“categorically” exclude certain kinds of claims from the SLAPP

statute’s ambit. Id. Where plaintiff’s claim arises from conduct

in furtherance of protected activity – and “but for” that protected

conduct, the claim “would have no basis” – the SLAPP statute

applies. Id. at 90. Accord Sheley v. Harrop, 9 Cal.App.5th 1147,

1167 (2017).

Here, despite Rall’s use of legal buzzwords, the allegedly

injury-producing act was The Times’ decision to stop publishing

his work. E.g., 1/A.A./40-43, 57-60. The First Amendment

protects “[t]he choice of material to go into a newspaper” and the

“exercise of editorial control and judgment” about the “content of

the paper.” Miami Herald v. Tornillo, 418 U.S. 241, 258 (1974).

Thus, “[t]o the extent the publisher’s choice of writers affects the

expressive content of its newspaper, the First Amendment

protects that choice.” McDermott, 593 F.3d at 962.

The SLAPP statute therefore applies to claims arising from

editorial conduct that affects news content, regardless of their

label. In San Diegans for Open Gov’t v. SDSU Research

Foundation, 13 Cal.App.5th 76 (2017) (“SDOG”) (review granted,

Jan. 24, 2018), a plaintiff who was unhappy about a nonprofit

34
news organization’s coverage sued it and a public university that

provided it with office space, alleging their collaboration violated

governmental conflict-of-interest laws. The court held that the

SLAPP statute applied because, regardless of how the claims

were denominated, they were “based on Defendants’ decisions in

entering into contracts to partner news gathering, news

reporting, and news production on television and other media ….”

Id. at 104. The court recognized that news reports do “not arise

out of thin air” (id. at 84), and conduct “in furtherance of speech”

also is covered by the statute.

The SLAPP law also applies to decisions not to publish. In

Greater L.A. Agency on Deafness v. CNN, 742 F.3d 414, 425 (9th

Cir. 2014) (“GLAD”), the statute was applied to a nonprofit

group’s discrimination claims arising from CNN’s alleged failure

to provide closed-captioning on its programs. Accord Kronemyer

v. IMDB, 150 Cal.App.4th 941, 947 (2007) (statute applied to

claims arising from refusal to list film credits on website). As the

court explained in Cross, 14 Cal.App.5th at 202, “[w]here ... an

action directly targets the way a content provider chooses to

deliver, present, or publish news content on matters of public

35
interest, that action is based on conduct in furtherance of free

speech rights” within the SLAPP law.8

Following these principles, courts regularly have applied

the SLAPP statute to discrimination, wrongful termination, and

similar claims when they arise from protected conduct. E.g.

Hunter, 221 Cal.App.4th at 1513-1514 (discrimination claims for

refusing to hire plaintiff as weather newscaster); Ingels v.

Westwood One, 129 Cal.App.4th 1050, 1064 (2005)

(discrimination, unfair competition claims arising from radio

producers’ “refusal … to allow [plaintiff] to participate” in radio

program); Taylor v. Viacom, 2018 U.S. Dist. LEXIS 95391, *12

(C.D. Cal. 2018) (anti-SLAPP statute applied to negligence action

based on decision to hire plaintiff as cast member for reality

television program); Gallanis-Politis v. Medina, 152 Cal.App.4th

600, 604, 610-611 (2007) (discrimination, retaliation claims based

on alleged pretextual investigation and false report); Vergos v.

8 Accord Lieberman v. KCOP, 110 Cal.App.4th 156, 166
(2003) (applying statute to newsgathering claims); Tamkin v.
CBS, 193 Cal.App.4th 133, 142-143 (2011) (preparing and
distributing script for casting calls).

36
McNeal, 146 Cal.App.4th 1387, 1397 (2007) (sexual harassment

claim).9

The Supreme Court’s decision in Park v. Board of Trustees,

2 Cal.5th 1057, 1063 (2017), did not change this analysis. In

Park, defendant University responded to a lawsuit for

discrimination and harassment with a SLAPP motion, arguing

that the “suit arose from its decision to deny [plaintiff] tenure

and the numerous communications that led up to and followed

that decision.” 2 Cal.5th at 1061 (emphasis added). In the

portion Rall cites, the Court rejected the University’s assertion

that the communications brought the suit under the SLAPP

statute, because the communications did not supply an essential

element of the claims at issue. Id. at 1068. The Court did not

consider the University’s argument that the decision to deny

tenure was protected conduct (based on the rationale that

professors speak for their universities), finding that the

University had not preserved that argument. 2 Cal.5th at 1072.

9 See also Taheri Law Group v. Evans, 160 Cal.App.4th
482, 489 (2008) (claims against attorney accused of stealing
clients); Vivian v. Labrucherie, 214 Cal.App.4th 267, 274 (2013)
(breach of contract); Bel Air Internet v. Morales, 20 Cal.App.5th
924, 945-46 (2018) (interference with contractual relations).

37
The Court distinguished between “‘a cause of action based

squarely on a privileged communication, such as an action for

defamation, and one based upon an underlying course of conduct

evidenced by the communication.’” Id. at 1064 (citation omitted).

Subsequent cases have affirmed that where conduct in

furtherance of speech is itself the wrong complained about,

Section 425.16 applies to “employment” claims. E.g., Okorie v.

LAUSD, 14 Cal.App.5th 574, 595 (2017) (SLAPP statute applied

because defendant’s communicative conduct was “not incidental

to – but integral to – Plaintiffs’ complaint”).

Here, in contrast to Park, Rall’s Publication Claims arise

directly and exclusively from protected conduct – The Times’

editorial decision to stop publishing Rall’s work, and its

publication of Articles informing readers of the questions

surrounding Rall’s blog post that led to the decision. 1/A.A./134-

137; 18/A.A./5793-5797.10

10 Rall inaccurately accuses The Times of relying on
Tuszynska v. Cunningham, 199 Cal.App.4th 257 (2011), without
acknowledging its partial disapproval in Park. OB 42. The
Times did not cite Tuszynska in its amended SLAPP Motion.
18/A.A./5787, 5892.

38
Rall’s reliance on Wilson v. CNN, 6 Cal.App.5th 822 (2016)

(review granted, March 1, 2017), is equally misplaced. The

majority decision is inconsistent with California law, because it

focused on the plaintiff’s legal conclusion that the defendant’s

conduct was “[d]iscrimination and retaliation,” instead of the

defendant’s conduct giving rise to the claims. Id. at 835; see

Section 2.

But even if Wilson ultimately is upheld, it has no

application here. There, the plaintiff claimed he suffered a

decade of “discrimination, harassment and retaliation before” he

authored the news report that caused his termination. 6

Cal.App.5th at 837 (emphasis added). The majority held the

prior conduct was unprotected by the SLAPP statute. Id. In

contrast, Rall’s claims rest exclusively on The Times’ decision to

stop publishing his work, and its Articles informing readers why.

1/A.A./40-52. Thus, Wilson does not support Rall’s claims even if

it survives review.

Finally, Rall concocts an artificially-high standard for

applying the SLAPP statute, asserting that Hunter remains good

law only if CBS demonstrates “that its choice of its on-air

weather broadcaster, … directly and severely impacts its very

39
business.” OB 43. But nothing in the Supreme Court’s reasoning

in Park suggests that a court must consider the “impact” on the

defendant’s “business” in evaluating whether the SLAPP statute

applies. Instead, it was sufficient in Hunter that “the station

itself engaged in speech on matters of public interest through the

broadcast of news and weather reports ….” Park, 2 Cal.5th at

1071 (citations omitted).

The decision to stop publishing Rall’s work did “directly

impact the content” of The Times. But more importantly, Rall’s

Publication Claims arise directly from The Times’ editorial

decision about the content of the newspaper and its Articles

informing readers about the decision. That conduct was “in

furtherance of” speech on matters of public interest within the

SLAPP statute’s protection.

2. Rall Conflates The First And Second Prongs Of The
SLAPP Analysis.

Rall’s attempt to characterize The Times’ editorial decision

as “wrongful termination” improperly conflates the issues

addressed by the first and second prongs of the statute.

In Fox Searchlight Pictures v. Paladino, 89 Cal.App.4th 294

(2001), plaintiff argued that contract-related claims were outside

40
the SLAPP statute’s scope because the alleged mishandling of

confidential information was not “protected” activity. Id. at 307-

08. This Court rejected that rationalization, explaining that

“[t]he Legislature did not intend that in order to invoke the

special motion to strike the defendant must first establish her

actions are constitutionally protected ….” Id. at 305.

The Supreme Court cited Paladino with approval, holding

that “any ‘claimed illegitimacy of the defendant’s acts” is

addressed in the second prong “merits” analysis. Navellier, 29

Cal.4th at 94-95 (citing Paladino, 89 Cal.App.4th at 305).

Following Navallier, courts routinely reject the argument that an

allegation of wrongful conduct removes the claim from the

SLAPP statute’s protection. E.g., Governor Gray Davis

Committee v. American Taxpayers Alliance, 102 Cal.App.4th 449,

458 (2002) (“a court must generally presume the validity of the

claimed constitutional right in the first step of the anti-SLAPP

analysis”); Wong v. Jing, 189 Cal.App.4th 1354, 1369 (2010)

(distinguishing between first and second prong burdens); DuPont

Merck Pharm. v. Superior Court, 78 Cal.App.4th 563, 567 (2000)

(same).

41
Courts regularly apply the SLAPP statute to claims that

include, as an element, a wrongful motive. For example, in Cross

v. Cooper, 197 Cal.App.4th 357 (2011), the court applied Section

425.16 to contract claims arising from the plaintiff’s allegation

that the defendants made negative statements about her

property to a prospective buyer “in retaliation” for a rent dispute.

Id. at 365-66. Accord Hansen v. CDCR, 171 Cal.App.4th 1537,

1545 (2008) (same; striking whistleblower claim); Hecimovich v.

Encinal School Parent Teacher Org., 203 Cal.App.4th 450, 464

(2012) (reversing SLAPP motion denial in defamation lawsuit,

finding trial court improperly framed issue based on plaintiff’s

legal conclusion (“defamation”), instead of defendants’ conduct

(making statements about the plaintiff)).

Whether the elements of the claim have been satisfied is

considered in the second prong analysis. Otherwise, a litigant

could evade Section 425.16 by obscuring explicit allegations of

protected activity with conclusory assertions of wrongful

motivation. Because Rall’s claims arise directly from The Times’

publications and editorial decisions (1/A.A./40-43, 57-60), the trial

court correctly held that the SLAPP statute applied.

18/A.A./5927.

42
B. Rall’s Claims Arise In Connection With An Issue Of Public
Interest.

1. The Public Interest Requirement Must Be Broadly
Construed.

The public interest requirement, “like all of section 425.16,

is to be construed broadly.” Seelig v. Infinity Broadcasting, 97

Cal.App.4th 798, 808 (2002) (statute applied to comments about

former reality show contestant). Accord Hecimovich, 203

Cal.App.4th at 464 (2012) (same); Damon v. Ocean Hills

Journalism Club, 85 Cal.App.4th 468, 481 (2000) (public interest

“has been broadly construed to include … private conduct that

impacts a broad segment of society”). As one court concluded:

Taken together, these cases and the legislative

history that discusses them suggest that ‘an issue of

public interest’ within the meaning of section 425.16,

subdivision (e)(3) is any issue in which the public is

interested. In other words, the issue need not be

‘significant’ to be protected by the anti-SLAPP

statute – it is enough that it is one in which the

public takes an interest.

Nygård v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1042 (2008).

43
A wide variety of subjects have been deemed to be of public

interest. E.g. Sipple v. Foundation for Nat. Progress, 71

Cal.App.4th 226, 238 (1999) (domestic violence); Rivera v. First

DataBank, 187 Cal.App.4th 709 (2010) (depression treatments);

Gilbert v. Sykes, 147 Cal.App.4th 13 (2007) (plastic surgery);

Summit Bank v. Rogers, 206 Cal.App.4th 669 (2012) (banking

system). Rall’s claims easily fall within these broad parameters.

2. Rall’s Narrow Test Is Contrary To California Law.

Rall ignores his Complaint and the record in asserting that

his claims are unconnected to any issue of public interest (O.B.

44-45). He proposes a narrow public interest inquiry, focused on

whether a plaintiff is a public figure (O.B. 44 & n.15, 47-48),

which contradicts controlling law.

California courts routinely have rejected a narrow focus on

a particular plaintiff. E.g., Hall v. Time Warner, 153 Cal.App.4th

1337, 1347 (2007) (claim by private figure beneficiary of Marlon

Brando’s estate fell within SLAPP statute);Tamkin, 193

Cal.App.4th at 144 (“no requirement” in SLAPP statute that

“plaintiff’s persona be a matter of public interest”); Hunter, 221

Cal.App.4th at 1527 (“proper inquiry” was not “CBS’s selection of

a weather anchor” itself but whether it “was ‘in connection with’ a

44
matter of public interest”); Terry v. Davis Community Church,

131 Cal.App.4th 1534, 1547-1549 (2005) (same).

This Court’s decision in Brodeur v. Atlas Entertainment,

248 Cal.App.4th 665 (2016), is instructive. Author Paul Brodeur

alleged he was defamed by the film American Hustle when a

character referenced Brodeur’s work in discussing safety

concerns about microwaves, which were novel inventions during

the period depicted in the film. Id. at 669-70. This Court rejected

Brodeur’s argument that the statement about him was not of

public interest; because the reference to Brodeur’s work reflected

wider social issues addressed by the film, the SLAPP statute’s

public interest requirement was satisfied. Id. at 677. Accord

Sarver v. Chartier, 813 F.3d 891, 902 (9th Cir. 2016) (claims

based on use of plaintiff’s “persona” in film was ““inherently

entwined” with broad topic of public interest); Carver, 135

Cal.App.4th at 343-44 (SLAPP statute applied to claims arising

from newspaper article about plaintiff doctor’s disciplinary issues

given broader health and safety issues); Four Navy Seals v. AP,

413 F.Supp.2d 1136, 1140-41 (S.D. Cal. 2005) (privacy claims

were within statute because plaintiffs’ photos were “relevant” to

“broader topic of treatment of Iraqi captives”).

45
This body of law is consistent with the framework courts

apply in determining what constitutes a matter of “public

interest” in other speech-related cases, like private facts claims.

For example, in Shulman v. Group W Productions, 18 Cal.4th

200, 223-24 (1998), the California Supreme Court found that

speech about a private person who was “involuntarily” caught up

in a matter of public interest is constitutionally protected as

“newsworthy” if there is a “logical nexus” between the plaintiff

and the broad subject matter of the program. Accord Pasadena

Star-News v. Superior Court, 203 Cal.App.3d 131, 133-134 (1988)

(articles about abandoned newborn that identified mother were

newsworthy).

The plain language of the SLAPP statute mandates that if

the conduct at issue furthers speech “connected with” a topic of

public interest, it is covered by the statute. C.C.P. § 425.16(e)(4).

Rall’s claims easily meet this standard.

3. The Times’ Conduct Was Connected To Matters Of
Public Interest.

Rall’s cartoon and blog, and The Times’ Articles discussing

them, related to alleged police misconduct and a resulting LAPD

investigation. 1/A.A./63-75. These topics are of significant public

46
interest. See PPOA v. Superior Court, 240 Cal.App.4th 268, 283

(2015) (recognizing strong public interest in information about

alleged police misconduct); POST v. Superior Court, 42 Cal.4th

278, 297-98 (2007) (noting public interest in “conduct of law

enforcement officers … perhaps especially at, an ‘on the street’

level”). The public also has a demonstrated interest in ensuring

that their sources of news and commentary are accurate and

trustworthy. 1 A.A./366-384. Transparency with readers when

published works are called into question furthers that interest.

The trial court correctly found that “Plaintiff’s article added

to the discussion of the jaywalking crackdown, and on whether

pursuing jaywalkers was a productive use of LAPD officers’ time.

The article was on an issue of public interest, …. That the Times

found the article inaccurate appears also to be a matter of public

interest.” 18/A.A./5930.

Similarly, The Times’ decision to stop publishing Rall’s

work was “in connection with” these issues of public interest

(C.C.P. 425.16(e)(4)). The decision indisputably resulted from

questions concerning Rall’s cartoon and blog post, which involved

matters of public interest. 3/A.A./683-684, 965-977; 4/A.A./983-

1058; 5/A.A.1061-1168; 6/A.A./1172-1402. Not publishing is

47
covered by the statute. See GLAD, 742 F.3d at 425; Kronemyer,

150 Cal.App.4th at 949.

Even if the Court narrowly focused on Rall, The Times

easily met its burden of establishing a public interest. In

Nygård, the SLAPP statute applied because of “extensive

interest” in Nygård – “‘a prominent businessman and celebrity of

Finnish extraction’ – among the Finnish public ….” 159

Cal.App.4th at 1042. Accord Seelig, 97 Cal.App.4th at 808

(statute applied to comments about reality show contestant);

McGarry v. University of San Diego, 154 Cal.App.4th 97, 109-110

(2007) (statements about football coach’s termination were of

public interest).

By his own description, Rall and his work are matters of

significant public interest. Section II.A. His Complaint claims he

is published by “scores” of publications; and “a past President of

the Association of American Editorial Cartoonists,” among other

things. 1/A.A./39-40. Rall has boasted that his cartoons are

“especially influential.” 3/A.A/678-679; see generally 1/A.A./330-

338; 4/A.A./982-6/A.A./1402. He also submitted declarations by

ten cartoonists from across the nation discussing their knowledge

of Rall’s work (3/A.A./724-729, 734-770).

48
Rall’s attempt to now portray himself as an inconsequential

cartoonist (OB 47-48) rings hollow. Given Rall’s admissions, The

Times’ Articles and decision to stop publishing Rall’s work were

plainly “in connection with” a matter of public interest. E.g.,

Brodeur, 248 Cal.App.4th at 675 (SLAPP statute applied where

plaintiff claimed he was a “well-known author”).11

Rall also claimed The Times’ decision to stop publishing his

work generated “extensive” media coverage. 1/A.A./39-40, 46.

Rall’s exhibits include dozens of publications concerning his

dispute with The Times about the accuracy of his blog post

(3/A.A./701-714; 6/A.A./1519-7/A.A./1941), illustrating public

interest in the controversy.

V. RALL DID NOT DEMONSTRATE A PROBABILITY OF
PREVAILING ON HIS CLAIMS

Because Rall’s claims fall within the scope of Section

425.16, the burden shifted to him to present admissible evidence

establishing a probability that he will prevail on each claim.

C.C.P. § 425.16(b)(1); Macias v. Hartwell, 55 Cal.App.4th 669,

11Rall’s hyperbolic assertion that this would mean
everything he does involves a matter of public interest (OB 47) is
a red herring. This lawsuit involves Rall’s widely-disseminated
publications about matters of substantial public interest.

49
675 (1997). The trial court correctly found that Rall failed to

meet his burden. 18/A.A./5910; 18/A.A./5918; R.A.0058-0060.

A. Rall’s Content Claims Were Properly Stricken.

Rall’s First, Second, Third, and Eighth Causes of Action,

labeled as claims for defamation, “defamation per se,”

“blacklisting,” and emotional distress, all arise from purported

injurious falsehoods in the Articles. 1/A.A.54-60. Rall cannot

avoid constitutional requirements by renaming his defamation

claims, as the Supreme Court established decades ago. Blatty v.

New York Times, 42 Cal.3d 1033, 1043 (1986) (requirements are

the same for any claim based on “injurious falsehood”). For all

these claims, Rall failed to establish publication of a “false and

defamatory statement” that was “unprivileged.” Restatement

(2d) of Torts § 558 (1977).

As a threshold matter, these claims have been significantly

narrowed on appeal. Rall’s Complaint identified 32 allegedly

defamatory statements. 1/A.A./43-51. But his OB only

references six statements. OB 77-78. Consequently, Rall

forfeited any challenge to the trial court’s ruling as to the vast

majority of the statements originally pleaded. Baral v. Schnitt, 1

Cal.5th 376, 392 (2016) (“each separate defamatory statement

50
gives rise to a new cause of action”; court can strike individual

statements under SLAPP statute); Kahn v. Bower, 232

Cal.App.3d 1599, 1612 n.5 (1991) (allegedly defamatory

statements must be specifically identified). As discussed below,

Rall failed to carry his burden of showing that Respondents

published any actionable statements.

1. The Times’ Articles Are Absolutely Privileged As Fair
Reports Of Official Proceedings And Records.

The First and Fourteenth Amendments to the U.S.

Constitution and Article I, § 2 of the California Constitution

protect reporting about official records and proceedings. Gates v.

Discovery Communications, 34 Cal.4th 679, 692 (2004) (First

Amendment privilege applied to news report about obscure public

court record). In California, the privilege is codified in Civil Code

§ 47(d), which provides absolute protection for “fair and true”

reports of official proceedings and records. Civ. Code § 47(d)(1).

California’s fair report privilege “is applied broadly.”

Sipple, 71 Cal.App.4th at 240. Accord Healthsmart Pacific v.

Kabateck, 7 Cal.App.5th 416, 431 (2016) (“[c]ourts have

construed the privilege broadly”; granting SLAPP motion); J-M

51
Manufacturing v. Phillips & Cohen, 247 Cal.App.4th 87, 101

(2016) (same).

The trial court applied these well-established authorities in

finding that the Articles are privileged.

a. The Fair Report Privilege Applies To The
Times’ Reports About LAPD Proceedings.

The Times’ Articles discussed two official law enforcement

proceedings: Rall’s 2001 detention and ticketing by Officer Durr,

and the subsequent LAPD internal affairs probe of Rall’s

misconduct complaint against the officer. 1/A.A./66-75, 231-268;

3/A.A./718; 7/A.A./1999-2018.

The Articles expressly cited and discussed police records

documenting these proceedings, including Rall’s jaywalking

ticket; an audio recording made by Officer Durr; the LAPD’s

transcript of that recording; Rall’s misconduct complaint;

statements by police about the investigations; and the police

chief’s letter to Rall about the investigation. 1/A.A./66-75;

7/A.A./2011. The August 19 article linked to the records, allowing

readers to review them first-hand. 1/A.A./68-75. The trial court

properly applied Section 47(d). 18/A.A./5916-5917.

52
Rall’s claim that Section 47(d) does not apply to LAPD

investigations is baseless. OB 63. For more than fifty years,

California courts have held that publications about “statements

made in the context of a police investigation” are “privileged and

cannot support a defamation claim.” Balzaga v. Fox News, 173

Cal.App.4th 1325, 1337 (2009); see also Hayward v. Watsonville

Register-Pajaronian, 265 Cal.App.2d 255, 260-61 (1968) (fair

report privilege applied to article reporting on criminal

investigation); Porter v. Guam Publ’ns, 643 F.2d 615, 617-18 (9th

Cir. 1981) (California privilege applies to article reporting on

police records).

This protection similarly applies to news reports about

internal police misconduct probes. E.g., Green v. Cortez, 151

Cal.App.3d 1068, 1070-73 (1984); Howard v. Oakland Tribune,

199 Cal.App.3d 1124, 1128 (1988) (“a police internal affairs

investigation is a ‘public official proceeding’ within the meaning

of this statute”); Crane v. Arizona Republic, 972 F.2d 1511, 1518

(9th Cir. 1992) (“[i]nternal police investigations also come within”

privilege).

Rall simply ignores these controlling authorities. Instead,

he focuses on inapposite language in Section 47(d)(1)(E) about

53
charges to public officials upon which warrants have been issued.

E.g., OB 67-69. Contrary to Rall’s unsupported claim (OB 67),

that subsection does not restrict the rest of Section 47(d); it

merely is one part of a disjunctive passage listing several

different types of proceedings that fall within the privilege. Civ.

Code § 47(d)(1). Clarendon America Ins. v. N. A. Capacity Ins.,

186 Cal.App.4th 556, 569 (2010) (terms used in the disjunctive

are “distinguished from each other”).

Media reports about criminal investigations and police

misconduct probes are protected under different provisions of the

statute: Section 47(d)(1)(A) extends the privilege to reports of

“judicial” proceedings, and Section 47(d)(1)(C) includes reports

concerning any “other public official proceeding.” Hayward, 265

Cal.App.2d at 259-60 (articles based on police crime reports and

“rap sheets” were reporting on “judicial” proceedings; “[i]n

determining the scope of the term ‘judicial proceeding’ … the

courts of this state seem to take a comparatively broad view”);

Howard, 199 Cal.App.3d at 1128 (“‘public official proceeding’”

includes “police investigation into allegations of use of excessive

force by police”); Cortez, 151 Cal.App.3d at 1073 (“there can be no

doubt that such an investigation [into alleged police misconduct]

54
is … a ‘public official proceeding’ under” the statute); Braun, 52

Cal.App.4th at 1050-51 (news reporting about investigations

conducted by public agencies deemed privileged under Section

47(d)(1)(C) as “reports of ‘public official proceedings’”).12

This same broad definition of “official proceeding” applies to

the Section 47(d) fair report privilege and the Section 47(b)

litigation privilege. E.g., Cortez, 151 Cal.App.3d at 1073 (“[a]

police investigation … has been held to be an ‘official proceeding

authorized by law’ for purposes of section 47, subdivision 2, and

there can be no doubt that such an investigation is similarly a

‘public official proceeding’ under subdivision 4”) (citation

omitted). Rall’s attempt to interpret these provisions

12 Rall’s unsupported assertion that Section 47(d) applies
only to proceedings in a “court of law” (OB 64) is inaccurate.
Crane, 972 F.2d at 1518 (broadly interpreting “public official
proceeding” in Section 47(d) “in a manner that most generously
accommodates the public’s right to know about the inner-
workings of its government”). Rall relies on a misleading
selective quotation from Merriam-Webster; the “legal definition”
of the word “proceeding” is completely consistent with the broad
scope of Section 47(d): See https://www.merriam-
webster.com/dictionary/proceeding (defining “proceeding” as “a
particular step or series of steps in the enforcement, adjudication,
or administration of rights, remedies, laws, or regulations,”
including “a criminal prosecution or investigation”).

55
inconsistently, in an attempt to create an artificially narrow

interpretation of Section 47(d), is meritless. OB 67.13

Rall’s reliance on Burrill v. Nair, 217 Cal.App.4th 357

(2013) (OB 67-69), is misplaced. That case did not involve a

media report; the defendant repeated allegations he made

himself in a “citizen’s criminal complaint.” Id. at 398. Although

the court found that the “privilege has been held to apply to fair

reports of police investigations,” it does not extend 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.” Id.

Unlike Burrill, The Times was not reporting on its own

complaint; furthermore, Rall’s own evidence shows that official

action was taken. This includes a Notice to Appear issued to Rall

in connection with the detention and ticketing (7/A.A./2002); an

LAPD report detailing the internal affairs investigation

13 Rall complains that a robust fair report privilege might
allow some people to “use the press to further their private
agendas.” OB 67. The Legislature rejected this argument when
it enacted Section 47(d), determining that the concern was “offset
by the policy reasons for the privilege,” including maximizing
public information about governmental proceedings and records.
Healthsmart, 7 Cal.App.5th at 437.

56
conducted in response to Rall’s misconduct complaint

(7/A.A./2009); and a letter explaining that the LAPD “completed

its investigation” into his claim (7/A.A./2011). See also

1/A.A./231-232, 253-268. Thus, Burrill is consistent with

application of the fair report privilege here.14

Rall’s criticisms of the LAPD’s probe (OB 65-66)15 are

irrelevant to application of the privilege, which does not depend

on the accuracy of the underlying proceeding or record. See

McClatchy Newspapers v. Superior Court, 189 Cal.App.3d 961,

974 (1987) (“[e]ven when the print media publish an accurate

report of a statement they know to be false, the protective cloak

of [the privilege] remains intact, not penetrated by a finding of

14 Subsequent decisions have criticized Burrill for narrowly
interpreting Section 47(d), based on a Restatement provision that
“is not the rule in California.” Healthsmart, 7 Cal.App.5th at
433-34. California deliberately enacted a statutory fair report
privilege that is broader than the common law privilege embodied
in the Restatement. Id. Accord Argentieri v. Zuckerberg, 8
Cal.App.5th 768, 793 (2017).
15Rall relies on excerpts from the LAPD Manual that were
not part of the trial court record, and should be disregarded. See
Respondents’ Opposition to Rall’s Request for Judicial Notice
(“RJN”) (Feb. 21, 2018).

57
malice”; newspaper could not be held liable for reporting on

allegedly inaccurate deposition testimony).16

Whether a public agency followed its own procedures or

acted appropriately is irrelevant to Section 47(d)’s protection for

media reports about the underlying public records. See Crane,

972 F.2d at 1519 (privilege applied where plaintiffs were “really

arguing with [the investigators’] conclusions, not with the

accuracy of The Arizona Republic’s reporting of those

conclusions”).

In Cortez, the plaintiff argued a newspaper was liable for

reporting a politician’s allegedly false statements made during a

public meeting. 151 Cal.App.3d at 1073-74. The court rejected

the claim, explaining that it confused “the liability of a

participant in a public proceeding” with “the liability of news

media defendants reporting the occasion.” Id. at 1074. For the

media defendants, “there could be no such liability, even if the

speaker abused his or her … privilege and thus was personally

liable.” Id. Accord Howard, 199 Cal.App.3d at 1128 (same).

16 Respondents’ counsel explained this fundamental
characteristic of the fair report privilege during one of the SLAPP
hearings. 7/14/17 RT at 48. Rall took an excerpt of the argument
out of context for his hyperbolic cartoon. OB 17.

58
Rall’s restrictive view would defeat the purpose of the

privilege – satisfying “the public’s need for information to fulfill

its supervisory role over government.” Crane, 972 F.2d at 1518.

He also cannot limit the application of the privilege with

insinuations about some undefined relationship between The

Times and the LAPD. OB 50. As the trial court properly held,

such accusations do “not obviate the privilege” as a matter of law.

18/A.A./5917. E.g. McClatchy, 189 Cal.App.3d at 971

(“allegations of conspiracy” between newspaper and source of

information “do not pierce the protective shield embodied in the

statute”).

b. Rall’s Attempts To Evade The Fair Report
Privilege Are Baseless.

Rall’s OB makes a variety of unsupported and meritless

assertions in an attempt to evade the privilege.

First, Rall’s assertion that the LAPD records were

“confidential” is erroneous and irrelevant. OB 70-71. The fair

report privilege includes news reports about confidential

governmental records and proceedings. E.g., Braun, 52

Cal.App.4th at 1051 (“courts have extended Civil Code section 47,

subdivision (d) protection to confidential proceedings.”).

59
Consequently, in applying the privilege to news reporting about a

state investigative audit it was “immaterial that the audit itself

was confidential.” Id. at 1050.

Likewise, in Crane, the Ninth Circuit rejected the

argument that articles were unprivileged because they reported

on a legislative committee investigation that “was not open to the

public.” 972 F.2d at 1517. The court explained: as “cases have

interpreted the phrase, ‘public’ would appear to mean

‘governmental’ as opposed to private actions,” and “‘[o]fficial’

apparently signifies formal, as opposed to informal, governmental

proceedings.” Id. at 1518. Accord Carver, 135 Cal.App.4th at 351

(“the fact that the complaints were … confidential and not open

to the public” did not preclude Section 47(d) privilege) (citation

omitted); Reeves v. ABC, 719 F.2d 602, 605-06 (2d Cir. 1983)

(applying California law in applying Section 47(d) to reporting

about “secret grand jury proceeding”).

Rall’s new argument relying on Section 47(d)(2)(C)

misapprehends the statute. OB 70-71. The privilege protects

both “a fair and true report in, or a communication to, a public

journal.” Civ. Code § 47(d)(1) (emphasis added). Publishers like

Respondents are protected under the first clause, for reports “in”

60
a public journal. Healthsmart, 7 Cal.App.5th at 431-32

(legislative history of Section 47(d) shows that first clause

protects “news media defendants” and second clause applies to

“intermediaries”).

By its plain terms, Subdivision (d)(2) only limits the

protections given for “communication[s] to a public journal.” Civ.

Code § 47(d)(2); Argentieri, 8 Cal.App.5th at 793 (provision

applies to “a communication to a public journal”). This

distinction ensures that the privilege does not absolve public

officials of confidentiality requirements if they disclose items in

violation of a confidentiality obligation, it nonetheless protects

media reports about such records. Braun, 52 Cal.App.4th at

1050.

In any event, the public records discussed in The Times’

Articles are not confidential. Here, too, Rall misunderstands the

relevant laws. OB 70-71. The CPRA’s exemption for

investigative records does not prevent agencies like the LAPD

from disclosing such files to the public. Berkeley Police Ass’n v.

City of Berkeley, 76 Cal.App.3d 931, 942 (1977) (investigatory

records exemption is permissive, not mandatory). Similarly,

police officers who are the subjects of internal affairs

61
investigations “may, of course, choose to waive the confidentiality

protection of section 832.7.” Berkeley Police Ass’ v. City of

Berkeley, 167 Cal.App.4th 385, 406 n.22 (2008).

Here, the LAPD and Officer Durr waived any potential

confidentiality interest by releasing the records to the public,

including Rall, in response to his CPRA request. 1/A.A/231,

3/A.A./718. Rall’s reliance on boilerplate language in the LAPD’s

cover letter ignores the fact that the department provided him

with the records, with that same correspondence. OB 70;

7/A.A./1999-2000. The Ethics Commission case that Rall

references is inapposite; there, an individual LAPD officer was

disciplined for unilaterally providing an investigatory record to

the media without the department’s permission. OB 71; RJN, Ex.

3 at 2, 11-13. Here, in contrast, the LAPD properly disclosed

these records.17 Regardless, Rall cannot evade The Times’ fair

report privilege by claiming the LAPD should not have released

the records.

17Rall’s convoluted argument about the status of the police
records also relies on new exhibits outside the trial court record
that should be disregarded. See RJN Opposition.

62
Second, Rall asserts that the privilege does not apply

because The Times reported on its “own investigation.” OB 19,

69-70. This misconstrues the law and the record. Section 47(d)

requires only that the report have “some connection or logical

relation to the proceeding.” McClatchy, 189 Cal.App.3d at 973-

74. This is a “lenient” standard that is “more lax than the

concept of relevancy itself.” Id. As the trial court correctly

determined, The Times’ Articles easily meet this broad standard.

18/A.A./5916.

Both Articles begin by expressly referencing the LAPD

investigations, and identify the particular records being

examined. 1/A.A./241, 244-251.18 Rall admits that The Times

obtained these records from LAPD Chief Beck and reviewed

them; reviewed Rall’s past writing on the subject; interviewed

police officials involved in the investigation; and interviewed Rall

about his account. OB 69. What Rall attempts to recharacterize

as a “private investigation” is routine journalistic due diligence in

18 Hawran v. Hixson, 209 Cal.App.4th 256 (2012), is
distinguishable. It involved a business’ press release that did
“not mention the subject SEC investigation, much less capture its
substance, gist or sting.” Id. at 280. The court “perceive[d] no
comparison between these circumstances and cases in which the
reporter’s privilege was held to apply.” Id. at 281-82.

63
reporting on official records and proceedings. It does not negate

the fair report privilege; otherwise, Section 47(d) would be

limited to verbatim republication of public records and

transcriptions of public meetings.

That is not the law. Well-established authority holds that

the fair report privilege applies to articles that present “a history

of the proceeding,” including references both to public records and

related interviews. Hayward, 265 Cal.App.2d at 260-61 (privilege

applied to news reports about police investigation based on “oral

statements of district attorneys, sheriffs, and police officers” as

well as “crime reports of a police department”). This reflects the

principle that the privilege requires “a certain amount of

breathing room for newspapers to explain the basis of a judicial

proceeding without at the same time opening themselves up to

exposure for defamation liability.” Dorsey v. National Enquirer,

973 F.2d 1431, 1437 (9th Cir. 1992).

In Dorsey, the privilege protected an article about litigation

that included out-of-court statements by a private investigator

offering “theories based upon the circumstances” in the court

records. Id. at 1437. Accord Crane, 972 F.2d at 1521-22

(privilege extended to portions of article “not derived from

64
Committee documents” which quoted interviews with the

reporter; “[s]tatements made by persons substantially involved in

a privileged proceeding, pertaining directly to the issues covered

by that proceeding and made in the course of the proceeding, fall

within the privilege’s compass”).

Similarly, in Braun, the court applied Section 47(d) in

granting a newspaper’s SLAPP motion, where the article about a

state auditor’s investigation included “statements made by

various persons” involved with the subject of the audit, along

with “the substance of the background reports and charges

leading up to the investigation; and a summary of the findings

that ultimately issued.” 52 Cal.App.4th at 1050-51. Accord J-M

Manufacturing, 247 Cal.App.4th at 104-05 (privileged press

release included lawyer’s out-of-court statements commenting on

evidence).

Rall’s argument that the privilege applies only to “portions”

of the articles (e.g., OB 72-73)19 was rejected by this Court under

19Rall incorrectly asserts that the trial court ruling “makes
clear that portions of the publications were not privileged ….”
OB 72. To the contrary, the trial court found that Rall’s
defamation claims failed for several reasons; it never stated that
any part of the Articles fell outside of Section 47(d).
18/A.A./5916-5917. Moreover, the trial court struck Rall’s entire

65
similar circumstances in Sipple. Sipple “urge[d] that the

privilege should be applied narrowly and should not shield the

entire article but only those statements that are part of the

proceedings.” 71 Cal.App.4th at 241. This Court disagreed,

holding that the privilege applied to the entire publication,

including interviews with participants in the proceedings “as well

as their supporters.” Id. at 246. The Court explained that the

interviews “expanded on the theme but did not otherwise alter

the substance of the privileged material such that a reader would

be affected differently if the information garnered by interviews

surrounding the … allegations were not included.” Id. at 245.

Notably, Rall’s OB fails to identify any allegedly

defamatory statement that falls outside of the privilege (OB 69-

73). Rall’s own evidence confirms that The Times accurately

reported what the LAPD records show: Rall never mentioned

physical force in his contemporaneous misconduct complaint

(7/A.A./2004-2005); the jaywalking incident ended with Rall

asking the officer for restaurant advice (3/A.A./687; 7/A.A./2009,

Complaint, and this Court “may affirm a trial court judgment on
any basis presented by the record whether or not relied upon by
the trial court.” Day v. Alta Bates, 98 Cal.App.4th 243, 252 n.1
(2002).

66
2016); and the LAPD investigated Rall’s complaint, determining

it was “unfounded” because there was “clear evidence to refute”

his allegations (7/A.A./2011).

Given this irrefutable evidence, Rall cannot demonstrate

that anything else in the Articles “alter[s] the substance of the

privileged material such that a reader would be affected

differently if the information garnered by interviews surrounding

the … allegations were not included.” Sipple, 71 Cal.App.4th at

245. Accord Crane, 972 F.2d at 1520 (the “newspaper’s

interpretation of [an] affidavit [was] privileged because it [was]

merely elaborating on what the affidavit already alleges”).

Third, Rall fails to show that the trial court erred in

concluding that the Articles offered a fair report of the “evidence

as received” from the LAPD. 18/A.A./5916. Rall simply recites

the statutory language, asserting that the Articles “were not ‘true

and fair’ reports of the LAPD’s file,” but his O.B. does not identify

any specific statement to which this assertion supposedly applies.

OB 69-70.20

20 Rall cannot do so on reply. See note 5.

67
Again, he does not do so because he cannot. The privilege

“carries with it a certain amount of literary license. The reporter

is not bound by the straitjacket of the [report’s] exact words.”

McClatchy, 189 Cal.App.3d at 975. Instead, a news report is

protected “if the substance, the gist, [or] the sting of the

[allegedly] libelous charge be justified.” Sipple, 71 Cal.App.4th at

244. Accord Colt v. Freedom Comm’n, 109 Cal.App.4th 1551,

1558-59 (2003) (plaintiff cannot defeat privilege with “fine

distinctions” between official records and news reports”).

Section 47 even applies where news reports differ in

significant ways from official records. Id. at 1558 (privilege

applied despite errors in article’s descriptions of details from SEC

proceedings); Carver, 135 Cal.App.4th at 357-358 (article

captured “essential point” of medical board records although it

stated 22 complaints were made against plaintiff instead of six);

Handelsman v. San Francisco Chronicle, 11 Cal.App.3d 381, 387

(1970) (privilege applied to article characterizing civil conversion

claim as accusation of “outright theft”).

Comparing the Articles and LAPD materials makes clear

that The Times’ reporting captured the “gist” and “substance” of

68
the records. Sipple, 71 Cal.App.4th at 244; compare 1/A.A./66-75

with 1/A.A./255-268; 7/A.A./1999-2018.21

Rall’s defamation claims boil down to his assertion that The

Times’ Articles did not present his “point of view.” OB 69. But

the July 28 piece included Rall’s response (1/A.A./241), and the

August 19 article had a long section titled “Rall’s explanation,”

along with links to Rall’s Internet posts about the controversy.

1/A.A./249-250. Even if the Articles had been entirely one-sided,

however, it is irrelevant. Because Section 47(d) is absolute, it

“does not require the reporter to resolve the merits of the charges,

nor does it require that he present the [plaintiff’s] version of the

facts.” Dorsey, 973 F.2d at 1436. Thus, in Dorsey, the court

applied the privilege to an article reporting on an affidavit that

21 Rall’s Complaint takes statements out of context, or nit-
picks individual phrases. E.g., 1/A.A./44, 48-49, 3./A.A./687,
7/A.A./2016 (objecting to description of LAPD audio as depicting
“polite” or “civil” interaction, even though Rall admits the
encounter ended with him asking officer for recommendations
about “local eateries”). Rall also objected to the phrase “audio
tape” versus “audio recording” (e.g., 1/A.A./47-48), although he
has used these terms interchangeably (e.g., 2/A.A./643). Rall’s
“quarrel with the language of the articles involves a level of
exegesis beyond the ken of the average reader of newspaper
articles,” which “need only convey the substance of the
proceedings on which they report.” Colt, 109 Cal.App.4th at
1560.

69
included accusations against the plaintiff, despite the

newspaper’s “failure to include statements that undercut [the

witness’] credibility.” Id. at 1435.

Likewise, in Paterno v. Superior Court, 163 Cal.App.4th

1342 (2008), the court rejected the plaintiff’s assertion that the

privilege should not apply because the defendant did not “place

[the] legal proceeding in ‘context’ by including what [plaintiff]

considers are the ‘key facts.’” Id. 163 Cal.App.4th at 1355. As

the court concluded, “journalists may simply report the facts of

proceedings without providing an explanation of those facts.” Id.

Accord Smith v. Press Democrat, 2011 U.S. Dist. LEXIS 121449,

at *15 (N.D. Cal. Oct. 20, 2011) (fair and true report privilege

“does not require [newspaper] to have presented plaintiff’s side of

her story or her ‘key facts’”). The trial court correctly found that

the Articles were privileged.

c. The Privilege Applies To The Articles As A
Matter Of Law.

Where, as here, the relevant records and publications are

before the Court, application of the privilege is a question of law.

McClatchy, 189 Cal.App.3d at 976-977; 18/A.A./5916.

Accordingly, courts regularly grant SLAPP Motions in cases

70
arising from media reports about official records and proceedings.

E.g., Sipple, 71 Cal.App.4th at 230; Braun, 52 Cal.App.4th at

1052-53; Colt, 109 Cal.App.4th at 1560; Paterno, 163 Cal.App.4th

at 1354-55 (refusal to allow discovery to oppose SLAPP motion

proper where defendant could prevail on fair report defense).

Neither the case law nor the record supports Rall’s cursory

argument that the privilege presents a “jury issue.” OB 71. To

the contrary, the only authorities he cites indicate the opposite.

OB 19, 71 (citing Healthsmart, 7 Cal.App.5th at 436-38 (granting

SLAPP motion on Section 47(d) grounds); J-M Manufacturing,

247 Cal.App.4th at 99, 105 (same)).22

Plaintiffs cannot escape early dismissal under Section 47(d)

by concocting a dispute about how journalists obtained public

records, because the only relevant issue is whether those records

were accurately presented. Braun, 52 Cal.App.4th at 1050 n.6

22 Pierce v. San Jose Mercury News, 214 Cal.App.3d 1626
(1989) (OB 72), is inapposite; it involved publication of
information a newspaper obtained from “a source familiar with
the case and from the department’s refusal to disclose specific
disciplinary actions.” Id. at 1630. The newspaper did not rely on
public records presented to the court. Id. In Handelsman, 11
Cal.App.3d at 386-87, the court affirmed a verdict in favor of a
newspaper, while recognizing that the privilege can be decided at
summary judgment or on demurrer under other circumstances.

71
(“[w]hen and how the Chronicle learned [the information from

public records was] not in issue. What does matter is whether

the Chronicle published a ‘fair and true’ account of these events

and whether they related to a ‘public official proceeding.’ They

did and they do.”); Medico v. Time, Inc., 643 F.2d 134, 146-47 (3d

Cir. 1981) (“how Time magazine obtained its knowledge of the

FBI materials is irrelevant” because article was “privileged as a

fair and accurate summary of” them).

Similarly, Rall’s attempt to create a jury question about

The Times’ contact with the LAPD is baseless. OB 31, 69. As the

trial court found, there was “no dispute” that the Articles

reported on police records and proceedings. 18/A.A./5916. The

court properly considered the relevant LAPD records (1/A.A./231-

268), which Respondents submitted, and which Rall did not

challenge on appeal. Doe v. Roman Catholic Archbishop, 177

Cal.App.4th 209, 218 n.3 (2009) (where plaintiff failed to mention

evidentiary objections in his opening brief “any issues concerning

the propriety of the trial court’s evidentiary rulings are

waived”).23

23The trial court considered the LAPD records in its
decision. 1/A.A./5910-5917. Consequently, Rall’s objections to

72
Rall’s own evidence also included the same LAPD records,

which he obtained through the CPRA. 3/A.A./718; 7/A.A./1999-

2018. And Rall repeatedly has acknowledged that the Articles

reported on records from police officials. E.g., OB 15; 2/A.A./643;

3/A.A./687.

Finally, Rall’s “jury issue” argument is devoid of a single

citation to his 18-volume appendix. OB 71-72.24 He failed to

provide any basis whatsoever for challenging the trial court’s

determination that the fair report privilege applies to The Times’

Articles as a matter of law. 18/A.A./5916.25

this evidence were “presumptively overruled,” and Rall had “the
burden … to renew the objections in the appellate court.” Reid v.
Google, 50 Cal.4th 512, 534 (2010). He did not do so, and cannot
do so belatedly on reply. See note 5, infra.
24Elsewhere in the OB, Rall claims that “the source of
these documents remains unknown,” pointing to a hearsay
statement from declarant Greg Palast. OB 31 (citing 3/A.A./728).
Respondents objected to this inadmissible assertion about what
someone who was not present at the meeting between Mr.
Beutner and Chief Beck supposedly told Palast. 13/A.A./3930.
The trial court properly ignored this inadmissible assertion.
Moreover, it is irrelevant, because Rall’s own evidence confirms
the contents of the LAPD records reported on by The Times. E.g.,
3/A.A./687, 7/A.A./1999-2018. See also Braun, 52 Cal.App.4th at
1050 n.6.
25Rall’s throwaway assertion that the “case was halted
before discovery could determine what exactly Chief Beck
provided” (OB 69) is irrelevant. Braun, 52 Cal.App.4th at 1050.

73
2. Rall Failed To Demonstrate That Any Of The
Statements At Issue Are Actionable.

Rall’s Content Claims also were properly stricken because

he did not meet his burden of proving that any of the statements

identified in the Complaint are actionable. 18/A.A./5917.

a. Rall Did Not Show That Any Statements At
Issue Are Materially False Or Defamatory.

Where, as here, the “disputed statements involve matters

of public concern, the plaintiff in a defamation action bears the

burden of showing the statements the defendant made were

false.” Melaleuca v. Clark, 66 Cal.App.4th 1344, 1355 (1998). In

the SLAPP context, a plaintiff must present “competent and

admissible evidence” showing that each complained-of statement

is materially false. Gilbert, 147 Cal.App.4th at 26-27. That

burden is not met if “the statement appears substantially true ….

Minor inaccuracies do not amount to falsity so long as the

substance, the gist, the sting, of the libelous charge be justified.”

Rall’s two dilatory requests for discovery in the trial court were
denied for lack of good cause. R.A.0005-0012. He did not
challenge those rulings in his OB; thus, he forfeited any
argument that the SLAPP Motions should have been denied on
this ground. See Holmes v. Petrovich Dev. Co., LLC, 191
Cal.App.4th 1047, 1073 (2011); note 5, supra.

74
Vogel v. Felice, 127 Cal.App.4th 1006, 1021 (2005) (original

emphasis).

Substantial truth may be determined by the court in the

first instance; courts regularly grant SLAPP motions where

plaintiffs fail to demonstrate material falsity. E.g., Gilbert, 147

Cal.App.4th at 27; Vogel, 127 Cal.App.4th at 1021-23; Reed v.

Gallagher, 248 Cal.App.4th 841, 861 (2016).

Additionally, to be actionable, an allegedly false statement

must be defamatory. A “defamatory meaning must be found, if at

all, in a reading of the publication as a whole,” and “cannot be

based on snippets taken out of context.” Balzaga, 173

Cal.App.4th at 1338 (quotations omitted). Rall also failed to

meet this burden with respect to any statement.

First, The Times cannot be held liable for noting

“discrepancies” between Rall’s account and LAPD records, or for

noting that LAPD records did not “back up” or “support” Rall’s

allegations, because he did not show these statements were

materially false. OB 74-76. Instead, comparing Rall’s blog post

with the LAPD records demonstrates such statements are

substantially true. 1/A.A./63-64, 231-232, 255-268; 7/A.A./1999-

2018. Among other things:

75
Rall’s contemporaneous police misconduct complaint did

not mention anything about the use of force, let alone

assert that he was thrown against a wall, as his blog

post later claimed. 7/A.A./2003-2005.

Rall concedes that the LAPD transcript, recording, and

even his “enhanced” audio include him asking Officer

Durr for restaurant advice at the end of the encounter.

3/A.A./687.26

Rall’s own evidence shows that the LAPD sent him a

letter concerning the results of its probe; the

investigator wrote that he “attempted numerous times

to contact Rall for a formal interview,” yet Rall claimed

in his blog post that “[t]hey had never notified me.”

Compare 1/A.A./63 with 7/A.A./2009, 2011.

Rall now alleges that “at least two women can be heard

on the enhanced version” of the audio (1/A.A./50), which

is a far cry from the blog post, where Rall claimed that

26 Rall’s claim that the trial court found that the audio
supported his account (OB 26-27) is false. Rall mischaracterizes
a passage in the ruling that plainly recites what the “complaint
alleges.” 18/A.A./5920.

76
“there were a couple dozen passersby shouting at the

cop” (1/A.A./63).

These are fairly described as “discrepancies” under any

standard, and certainly under the lenient “substantial truth”

test, where “it is sufficient if the substance, the gist, the sting of

the libelous charge be justified.” Gilbert, 147 Cal.App.4th at 28.

Rall also had the burden under Section 425.16 of

“presenting evidence that the statements were in fact

substantially false.” Vogel, 127 Cal.App.4th at 1021 (emphasis

added); Brodeur, 248 Cal.App.4th at 674 (plaintiff “must produce

evidence that would be admissible at trial”), but his cursory

discussion relies almost entirely on allegations in his Complaint.

OB 74-76. The only “evidence” that Rall cites is his own

declaration, which attaches the LAPD records and acknowledges

major inconsistencies, while trying to explain them away.

3/A.A./687, 718. That does not meet his evidentiary burden.

Vogel, 127 Cal.App.4th at 1021-23 (plaintiff’s inadequate

declaration failed to establish falsity); Carver, 135 Cal.App.4th at

358 (granting SLAPP motion for lack of falsity “[g]iven all of what

plaintiff does not dispute or effectively controvert”); Gilbert, 147

Cal.App.4th at 32 (SLAPP plaintiff attempting to show falsity

77
could “not impeach his own sworn testimony with contrary self-

serving averments”).

Second, Rall mischaracterizes the Articles, claiming that

they falsely state that LAPD records “proved that Officer Durr

did not use force against Rall and treated him politely.” OB 75

(emphasis added). This is another red herring. The Articles do

not make a determination about what actually happened during

Rall’s police encounter. 1/A.A./66-75. Based on the police files

and Rall’s statements, however, The Times concluded that the

records raise “serious questions about the accuracy of Rall’s blog

post.” 1/A.A./66, 75. That is not a statement about what the

records “proved,” nor is it defamatory. Thomas v. Los Angeles

Times, 189 F.Supp.2d 1005, 1013 (C.D. Cal. 2002) (finding no

defamatory meaning where article “raise[d] … questions” about

the plaintiff’s story “by setting forth [his] version of events along

with those of other witnesses and historical records”); Section

V.A.2.b, infra. The audio (and Rall’s “enhanced” audio) were

provided to readers; the Articles expressed subjective conclusions

about what could (and could not) be heard. Those conclusions are

constitutionally protected. Franklin v. Dynamic Details, 116

78
Cal.App.4th 375, 387-388 (2004) (conclusion based on disclosed

facts not actionable).

Third, Rall failed to show anything false or defamatory

about The Times’ characterization of the audio that it received

from the LAPD. OB 75-78. Contrary to Rall’s misrepresentation,

The Times never claimed that it received an “original” audiotape.

OB 77, 78 (emphasis added); See 1/A.A./66, 68-75. The Times

informed readers that “Durr’s recording [was] made on a micro-

cassette recorder and later transferred to a digital format.”

1/A.A./72 (emphasis added). The Times also reported Rall’s

criticisms about the audio (e.g., 1/A.A./66, 73-75), and provided

readers with a link to Rall’s purportedly “enhanced” version so

they could listen to it (1/A.A./74). Rall’s insinuation that The

Times ignored his account, or misrepresented to readers that it

had resolved what happened in 2001 based on the “original

media” (OB 78), is simply untrue.

More critically, Rall failed to show The Times’ description

of the audio defamed him – or that its language could create any

material difference in the mind of a reasonable reader who also

reviewed the underlying source materials, given the undeniable

79
discrepancies between his blog post and the LAPD records. See

Section V.A.1.27

Rall’s position is analogous to the plaintiff in Gilbert, a

plastic surgeon who sued a patient for defamation over her

website – “mysurgerynightmare.com.” 147 Cal.App.4th at 18.

The doctor argued that the patient posted “misleading”

photographs from before and after surgery, to make his work look

bad. Id. at 28. Just as Rall tried to manufacture a factual

dispute over supposed “audio enhancement,” the doctor in Gilbert

submitted a declaration from a witness whose computer analysis

found the photos unreliable because they “were taken from

different angles and on a different scale.” Id. at 28-29.

The appellate court saw through this tactic, observing that

the plaintiff “seeks to turn the court’s attention away from the

forest by focusing on the trees, or perhaps more accurately, a

branch of one tree.” Id.at 29. As the court explained, “the

average reader cares little about geometrical accuracy – what is

important is that the photographs were substantially accurate

27 Rall does not and cannot claim that his “enhanced” audio
reflects any sort of physical conflict or verbal abuse. OB 35-36,
74-78.

80
depictions of what Gilbert’s face looked like before and after

Sykes’s surgery”; because the declaration “did not negate this

fact, it did not help prove a prima facie case of defamation.” Id.

The same is true here. The Times accurately described the

recording it received from the LAPD. 1/A.A./66-75, 253-266,

7/A.A./1999-2018; Section V.A.1, supra. Thus, the complained-of

statements “were substantially accurate representations of” the

police records, and “were not defamatory as a matter of law.”

Gilbert, 147 Cal.App.4th at 29.

Rall’s other assertions about the Articles have no merit.

The Times did not claim to have “the complete files” of

the incident. OB 74. The July 28 piece stated that the

LAPD “has provided records about the incident,

including a complaint Rall filed at the time” and an

“audiotape of the encounter recorded by the police

officer.” 1/A.A./66. The August 19 article stated that

the LAPD “provided documents and a tape recording of

the 2001 encounter.” 1/A.A./68. These statements are

true, as Rall admits. Section V.A.1, supra; 3/A.A./718;

7/A.A./1999-2018; OB 15; 2/A.A./643. These statements

also are not about Rall, so cannot defame him. Ferlauto

81
v. Hamsher, 74 Cal.App.4th 1394, 1405 (1999) (finding

no defamatory meaning in statements “not even directed

at” plaintiff).

The statement in the August 19 article, attributed to

Officer Durr, that, “in his entire career, he said, he had

never handcuffed anyone for jaywalking” (1/A.A./72; OB

75), also is not about Rall and is not actionable.

Ferlauto, 74 Cal.App.4th at 1405. Rall’s only “evidence”

on this point is an article about illegal street racing

(11/A.A./3214), which is not inconsistent with the

statement in The Times’ article.28

Rall falsely asserts that the Articles suggest his “sole

response” was that he stands by his blog post. OB 77.

The July 28 note included his response, including his

28 Rall asserts that “[s]treet racing is a less serious offense,”
claiming it “is a violation while Jaywalking is a misdemeanor.”
OB 75. This is false. “[S]peed contests or exhibitions” and
“reckless driving” are misdemeanors. Vehicle Code § 40000.15.
Moreover, cars illegally racing on public streets pose greater
danger than a pedestrian jaywalking. But fundamentally, Rall
misunderstands the substantial truth inquiry: statements are
protected if they capture the gist or sting of the literal truth. Rall
cannot make a literally true statement actionable through a
series of strained inferences. Whether or not Officer Durr
handcuffed someone for street racing does not show that he ever
handcuffed a jaywalker.

82
claim that the LAPD audio “was of poor quality and

contained inaudible segments.” 1/A.A./66. The August

19 piece included a long section titled “Rall’s

explanation” and linked to Rall’s web posts and other

material offering his perspective. 1/A.A./73-74.

Rall fails to show anything actionable in the statement

that “Department records show that investigators …

tried repeatedly to reach Rall.” 1/A.A./69. He claims

that he did not receive the messages (OB 78), but this

does not controvert the statement that the “records

show” that the investigators tried to reach him. E.g.,

7/A.A./2009 (LAPD report Rall submitted states

investigating officer “attempted numerous times to

contact Rall for a formal interview” and “numerous

messages were left on his answering machine”).

Finally, Rall failed to present evidence showing anything

false in the Articles’ discussion of Rall’s earlier writings about the

jaywalking incident. Rall admits his prior accounts had

“different levels of detail” (OB 76). His contemporaneous

complaint in 2001 said nothing about violence or any

handcuffing. 7/A.A./2004-2005. His 2005 account mentioned

83
handcuffs for the first time (1/A.A./323), but his accusation about

violence first surfaced in 2006 (1/A.A./324). As the trial court

noted, that Rall “may have an explanation” for variations “does

not make the report on the variances untrue.” R.A.0060.

b. Subjective Expression In The Articles Is Not
Actionable.

The remaining statements Rall complains about are

subjective comments, or conclusions drawn from undisputed

facts. OB 77-78. None of these statements are actionable.

Milkovich v. Lorain Journal, 497 U.S. 1, 20 (1990) (“statement of

opinion” that does not contain “provably false factual

connotation” is constitutionally protected); Seelig, 97 Cal.App.4th

at 810 (there can be no liability for “statements of the speaker’s

subjective judgment”); Ferlauto, 74 Cal.App.4th at 1401

(“rhetorical hyperbole, vigorous epithets, lusty and imaginative

expressions of contempt, and language used in a loose, figurative

sense have all been accorded constitutional protection.”)

Under this well-established law, even if The Times had

stated expressly that Rall’s work “was of low quality and low

integrity” (OB 77-78), which it did not, the statement would be

constitutionally protected. E.g., Moldea v. New York Times, 22

84
F.3d 310, 317 (D.C. Cir. 1994) (criticism of plaintiff’s “sloppy

journalism” was constitutionally protected); James v. San Jose

Mercury News, 17 Cal.App.4th 1, 19 (1993) (columnist’s

implication that lawyer was “guilty of a ‘sleazy’ (and thus

inferably unethical) tactic” was protected speech); Moyer v.

Amador Valley Jt. Union High School Dist., 225 Cal.App.3d 720,

725 (1990) (“worst teacher at [school]” statement was

constitutionally protected).

In evaluating this constitutional protection, courts consider

“the facts surrounding the publication, the nature and full

content of the statement and the knowledge and understanding

of the audience to whom the publication was directed.” Rudnick

v. McMillan, 25 Cal.App.4th 1183, 1191 (1994). Here, the

Articles appeared in the Opinion and Reader’s Representative

sections of The Times’ website, labeled as editors’ notes.

1/A.A./66, 68. The presentation signaled to readers that the

pieces would include subjective conclusions. Cochran v. NYP

Holdings, 58 F.Supp.2d 1113, 1123 (C.D. Cal. 1998) (placement of

column bolstered conclusion that statements criticizing lawyer’s

performance were nonactionable opinion).

85
Furthermore, “[w]hen an author outlines the facts available

to him, thus making it clear that the challenged statements

represent his own interpretation of those facts and leaving the

reader free to draw his own conclusions, those statements are

generally protected by the First Amendment.” Partington v.

Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995). The Partington

court rejected a libel action, because the author “expressed his

own opinion after having outlined all of the facts that serve as

the basis for his conclusion.” Id. at 1156.

Courts regularly apply these bedrock First Amendment

principles to protect publications like the Articles. For example,

in Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), an article

questioning the plaintiff’s academic work was constitutionally

protected because “the thrust of the column, taken as a whole, is

to raise questions about Mr. Ollman’s scholarship and intentions,

not to state conclusively … that [he] is not a scholar or that his

colleagues do not regard him as such.” Id. at 990. The “First

Amendment is served ... by those articles that, more modestly,

raise questions and prompt investigation or debate.” Id. at 983.

Accord Howard v. Antilla, 294 F.3d 244, 254 (1st Cir. 2002) (First

Amendment protected article which was “essentially an account

86
of two sides of an issue in which [the author] merely raises

questions concerning the authorities’ treatment of the dispute”).

The decision in Thomas is analogous. The district court

granted The Times’ SLAPP motion, dismissing a libel action

based on an article that questioned the plaintiff’s account of his

World War II experiences. 189 F.Supp.2d at 1009. The article

“compared several of Thomas’ accounts of his role in historic

events with other records and recollections.” Id. at 1016. The

court held that “[e]ven if [the author’s] opinion is that Thomas

lied and that opinion comes through in the article, that opinion is

clearly based on a consideration of both sides of the story. If the

opinion is based on disclosed facts, it is not actionable.” Id. at

1016-1017. “At most,” the court held, “a reasonable juror would

find that Defendants intended to raise questions about Thomas’

story.” Id. at 1013.

The same is true here. The Articles expressed the view

that LAPD records raise “serious questions about the accuracy of

Rall’s blog post.” 1/A.A./66, 75. In doing so, the Articles

examined both sides of the controversy, describing the

substantial inconsistencies between Rall’s piece and LAPD

87
records, while also providing Rall’s explanations, leaving it to

readers to reach their own conclusions. 1/A.A./66, 68-75.

Because the Articles “disclosed all of the facts on which

[they were] based and did not imply that there are other,

unstated facts supporting” them, their conclusions are

constitutionally protected. Franklin, 116 Cal.App.4th at 387-88

(conclusion that plaintiff stole copyrighted material and

plagiarized data was nonactionable because factual basis was

disclosed).

Rall’s response is to assert dismissively that “facts were

withheld from readers.” OB 78. But Rall does not identify any

pertinent “facts” omitted by The Times; he simply tries to

mischaracterize the actual contents of the Articles, which

accurately described the source materials from the LAPD and

presented Rall’s response at length. See Section V.A.2.a, supra.

Plainly, Rall wishes the Articles were favorable to him and

critical of the LAPD. OB 76-78. But the requirement that an

author disclose facts upon which an opinion is based does not

mean that the author must endorse the subject’s version of the

facts. Partington, 56 F.3d at 1159 (“[a]uthors should have

‘breathing space’ in order to criticize and interpret the actions

88
and decisions of those involved in a public controversy”). Accord

Janklow v. Newsweek, 788 F.2d 1300, 1306 (8th Cir. 1986)

(“[c]ourts must be slow to intrude into the area of editorial

judgment”).29

3. Rall Failed To Comply With The Retraction Statute
And Did Not Demonstrate Recoverable Damages.

The orders striking Rall’s Content Claims also should be

affirmed because Rall failed to demand a retraction for the vast

majority of the statements identified in the Complaint, and did

not demonstrate recoverable damages.30

California’s retraction statute, Civil Code § 48a, requires

that publishers be provided an opportunity to retract allegedly

inaccurate statements before being subjected to suits for general

29 Dickinson v. Cosby, 17 Cal.App.5th 655 (2017), is
inapposite. OB 78-79. Applying the context-dependent “totality
of the circumstances” test, this Court held that “a lawyer’s letter
threatening litigation and setting out the factual and legal basis
for it” was actionable. Id. at 688-89. That is distinguishable from
a newspaper report that raises questions, based on a balanced
review of public records and the plaintiff’s own statements. The
same is true of Yelp v. Superior Court, 17 Cal.App.5th 1, 16-18
(2017), which involved an online review accusing an accountant
of misconduct.
30 Rall’s assertion that the issue of damages “was not
meaningfully contested below” is incorrect; Respondents raised
this issue as a separate basis for striking Rall’s content claims.
E.g., 18/A.A./5774-5775, 5832-5833, 5856-5857.

89
damages. Freedom Newspapers v. Superior Court, 4 Cal.4th 652,

654-56 (1992). Consequently, Rall was required to serve a timely

“written notice specifying the statements claimed to be libelous

and demanding that the same be corrected.” Id. If no specific

retraction demand is timely made, the plaintiff is limited to

“special damages,” i.e., “damages that plaintiff alleges and proves

that he or she has suffered in respect to his or her property,

business, trade, profession, or occupation … and no other.” Civ.

Code §48a(d)(2). If a plaintiff fails to comply with Section 48a,

and does not adequately plead and prove special damages, the

claims should be stricken under Section 425.16. AEG v. Snepp,

171 Cal.App.4th 598, 643 (2009) (striking claims where plaintiff

sent inadequate retraction demand and “presented no proof of

special damages”).

Rall’s only correspondence requesting retraction of

particular statements was his email of September 4, 2015, which

identified only four of the 32 statements identified in his

Complaint (Cmplt. ¶¶ 20(a), (g), (n), and (v)). 1/A.A./46-51, 277-

279. Consequently, Rall failed to comply with Section 48a with

respect to 28 of 32 statements. 1/A.A./43-51 (Cmplt. ¶¶ 14(c)-(i);

¶¶ 20(b)-(f), (h)-(m), (o)-(u), (w)-(y)).

90
Rall is barred from recovering damages arising from

publication of those 28 statements, other than “special” damages.

C.C.P. § 48a; Gomes v. Fried, 136 Cal.App.3d 924, 937-38 (1982)

(plaintiff cannot recover general damages for statements not

specified in demand). But Rall failed to plead or prove any

concrete, quantifiable injury. OB 80-81. His Complaint contained

only boilerplate allegations of harm (1/A.A./52-53, 55), and his

only “evidence” is his own declaration, which did not identify a

single specific economic loss. 3/A.A./716-717.

Rall submitted five declarations from colleagues attesting

that The Times’ publications did not hurt Rall’s professional

standing. E.g., 2/A.A./529 (declarant has “not met a single

colleague who said they believe Ted lied about his police

encounter”); 2/A.A./535 (“Ted’s reputation as a journalist … was

unchanged”); 2/A.A./541 (Rall’s reputation “remains impeccable”);

2/A.A./550 (Rall’s reputation among “colleagues in the cartooning

trade … did not, … change materially after his departure from

the Times”); 2/A.A./568 (incident “didn’t dim [his] reputation and

may have enhanced it”).

Rall’s deficient pleading and contradictory evidence did not

meet his burden of proving special damages, barring any recovery

91
for 28 of the 32 statements in the Complaint. Gang v. Hughes,

111 F.Supp. 27, 29 (S.D. Cal. 1953) (“general allegation of loss of

business” not sufficient; “plaintiff must allege the specific manner

in which he lost business as a result of the defamation”);

Pridonoff v. Balokovich, 36 Cal.2d 788, 792 (1951) (“general

allegation of loss of a prospective employment, sale, or profit will

not suffice”).

This defect is fatal to the remainder of his claims as well.

Where a plaintiff cannot demonstrate a statement caused injury,

given other non-actionable published statements, his defamation

claim fails. Coastal Abstract Serv. v. First Am. Title Ins., 173

F.3d 725, 732-33 (9th Cir. 1999) (libel plaintiff cannot recover

damages attributable to non-actionable statements).31 Thus,

even if Rall had presented admissible evidence that the four

statements in his retraction demand were actionable (which he

did not), his Content Claims fail because no recoverable damages

were linked to those statements.

31 Accord Fisher v. Larsen, 138 Cal.App.3d 627, 635-36
(1982) (defamation claim dismissed where significant negative
press coverage precluded proof that allegedly defamatory
statements caused damage); Jensen v. Hewlett Packard, 14
Cal.App.4th 958, 971 n.15 (1993) (nonsuit proper in defamation
case where plaintiff “presented no evidence of causation” tying
harm to actionable statements).

92
Rall’s cursory reference to “per se” damages ignores the

effect of his failure to comply with Section 48a. OB 80. “Per se”

defamation is a common law concept, where reputational damage

may be assumed for certain kinds of statements. Correia v.

Santos, 191 Cal.App.2d 844, 851 (1961). But Section 48a is a

legislative enactment; for public policy reasons, it requires a

showing of special damages if a retraction is not timely

demanded. An allegation of “defamation per se” cannot

circumvent the statute. Morris v. Nat’l Federation of The Blind,

192 Cal.App.2d 162, 165 (1961) (if Section 48a applied, “failure to

demand retraction would bar all recovery” despite allegation of

libel per se); Snepp, 171 Cal.App.4th at 604, 643 (striking claims

for lack of special damages despite allegation that broadcast was

“defamatory per se”). Rall’s allegation of “per se” defamation

cannot salvage his claims.

4. Actual Malice Is Irrelevant At This Stage.

Rall accuses the trial court of having “ducked” actual

malice (OB 81), but that issue was not raised in Respondents’

SLAPP Motions. The trial court properly struck Rall’s Complaint

on other grounds. Nygård, 159 Cal.App.4th at 1054 (granting

SLAPP motion; where plaintiffs failed to show falsity, court “need

93
not consider” public figure status or actual malice). Rall’s

attempt to distract by making unfounded allegations of malice

should be disregarded.

5. Rall Abandoned His Duplicative Emotional Distress
Claim.

Rall only mentions his emotional distress claim in his

procedural history. OB 22. Therefore, this Court should “deem

[Rall] to have abandoned any challenge to the order striking

[this] claim[] because of his failure to address the matter in his

opening brief.” Paulus v. Bob Lynch Ford, 139 Cal.App.4th 659,

684-85 (2006). He cannot “salvage these abandoned issues” by

belatedly discussing his IIED claim for the first time on reply. Id.

at 685; see also note 5, supra.

Nonetheless, Rall’s IIED claim was properly stricken. It

arises from the same allegations as his other Content Claims

(1/A.A./60), and is barred for the reasons as those claims. See

Gilbert, 147 Cal.App.4th at 34 (striking duplicative IIED claim

subject to same defenses).

Furthermore, the conduct alleged here – disclosing

discrepancies between Rall’s blog post and official records, and

making an editorial decision not to publish Rall’s future work

94
(1/A.A./60) – is not “outrageous, that is, beyond all bounds of

reasonable decency.” Comstock v. Aber, 212 Cal.App.4th 931, 954

(2012). Accord Koch v. Goldway, 817 F.2d 507, 510 (9th Cir.

1987) (defendant’s “reprehensible” reference to plaintiff as a Nazi

did not reach “level of conduct necessary” to support IIED claim).

Finally, Rall failed to allege or submit evidence of “severe

emotional distress.” Comstock, 212 Cal.App.4th at 954. His

boilerplate damage allegations, and declaration that he sleeps

poorly and drinks too much, do not meet this strict requirement.

1/A.A./60, 3/A.A./717-718. Hughes v. Pair, 46 Cal.4th 1035, 1051

(2009) (“plaintiff’s assertions that she has suffered discomfort,

worry, anxiety, upset stomach, concern, and agitation” did not

meet IIED standard).

B. Rall’s Publication Claims Were Properly Stricken.

Rall’s Fourth, Fifth, Sixth, Seventh, and Eighth Causes of

Action, which arise solely from The Times’ decision to stop

publishing his work, also were properly stricken.

1. The First Amendment Protects The Times’ Absolute
Right To Decide What To Publish.

Rall concedes that federal and state constitutional law bar

any attempt to control The Times’ editorial content by imposing

95
liability for its editorial choices. OB 51 (“[o]f course, the First

Amendment prohibits that kind of intrusion upon editorial

choice”). As the Ninth Circuit held in McDermott, 593 F.3d at

953, “[t]he First Amendment protects the right of a newspaper to

control its content.” That is because the “choice of material to go

into a newspaper ... constitute[s] the exercise of editorial control

and judgment. It has yet to be demonstrated how governmental

regulation of this crucial process can be exercised consistent with

First Amendment guarantees of a free press.” Tornillo, 418 U.S.

at 258.

Laws that interfere with editorial discretion are subject to

First Amendment limitations. For example, in Smith v.

California, 361 U.S. 147 (1959), the Court struck down a Los

Angeles ordinance that eliminated scienter as a requirement for

holding a book seller responsible for selling obscene materials.

Although the effect on speech arguably was indirect, the Court

held the Constitution forbade it. Id. at 150-51. Accord CBS v.

Democratic Nat’l Comm., 412 U.S. 94, 155 (1973) (Douglas, J.,

concurring) (“the First Amendment puts beyond the reach of

Government federal regulation of news agencies save only

96
business or financial practices which do not involve First

Amendment rights” (emphasis added)).

In Lyle v. Warner Bros., 38 Cal.4th 264 (2006), the

California Supreme Court made clear that courts must consider

the context in which employment claims arise in evaluating

whether the plaintiff has stated and substantiated a claim. Id. at

286-287. Justice Chin’s concurrence focused on the defendant’s

First Amendment rights: “Lawsuits like this one, directed at

restricting the creative process in a workplace whose very

business is speech related, present a clear and present danger to

fundamental free speech rights.” Id. at 297 (Chin, J., concurring).

Thus, “in cases involving the rights protected by … the First

Amendment,” courts impose stringent burdens on the plaintiff.

Id. at 300.

Ampersand Publ’g v. NLRB, 702 F.3d 51, 56 (D.C. Cir.

2012), is instructive. There, the court reversed an NLRB decision

protecting newspaper employees who attempted to coerce the

publisher into modifying newspaper content through collective

bargaining. As the court explained:

The First Amendment affords a publisher – not a
reporter – absolute authority to shape a newspaper’s
content ….

97
“Where enforcement of the [generally applicable law]
would interfere with a newspaper publisher’s
‘absolute discretion to determine the contents of [its]
newspaper[],’ the statute must yield.”

Id. (citation omitted)).

Courts consistently reject employment claims arising from

personnel decisions that implicate the content of an expressive

work. For example, in McDermott, the Ninth Circuit ruled that

an order “[t]elling the newspaper that it must hire specified

persons” was unconstitutional, noting that it “is bound to affect

what gets published.” 593 F.3d at 962. Accord Nelson v.

McClatchy Newspapers, 936 P.2d 1123, 1133 (Wash. 1997)

(finding newspaper’s no-politics policy for journalists was within

its right to control editorial processes and protect against

appearance of bias); Newspaper Guild of Greater Philadelphia,

Local 10 v. NLRB, 636 F.2d 550, 560 (D.C. Cir. 1980) (newspaper

had right to unilaterally adopt editorial ethics rules,

notwithstanding collective bargaining requirements).

Eisenberg v. Alameda Newspapers, 74 Cal.App.4th 1359

(1999), is on-point. The court affirmed summary judgment for a

newspaper publisher that fired a reporter based on the content of

an article, and rejected the reporter’s claim for wrongful

98
termination in violation of public policy, holding that “it was the

[newspaper’s] right to set and enforce its own standards for

acceptable and responsible reporting. Eisenberg was fired

because he did not meet those standards.” Id. at 1391.

“[T]he courts have long held that the right to

control the content of a privately published

newspaper rests entirely with the

newspaper’s publisher. The First

Amendment protects the newspaper itself,

and grants it a virtually unfettered right to

choose what to print and what not to.”

Id. See also Claybrooks v. ABC, 898 F.Supp.2d 986, 999 (M.D.

Tenn. 2012) (television producers’ personnel choices were

constitutionally protected against discrimination claims; casting

was “part and parcel of the Shows’ creative content”).

Rall ignores this clear law, choosing instead to exaggerate

the impact of the trial court’s decision. OB 17-18, 51-52. The

Times does not claim that “all of its activities are protected by the

First Amendment” (OB 17), nor does it contend that publishers

are immune from all federal or state employment laws. (OB 18,

51-52.) This case is not about conduct unrelated to the content of

99
The Times. OB 59. The case is all about content – Rall sued The

Times for disclosing to readers that it would no longer publish his

work because of serious questions about the accuracy of the blog

post that he submitted.

The Times’ decision to stop publishing his work did not

violate Rall’s civil rights. Id. Even if The Times had collaborated

with the LAPD to “silenc[e] a critic” – a ludicrous charge – The

Times has an absolute right to decide how it will report on the

LAPD; it had no obligation to let Rall dictate its editorial stance.

Ampersand Publ’g, 702 F.3d at 56. The Times also had every

right to end its relationship with Rall, after it concluded he had

not met its editorial standards in writing about his interaction

with the LAPD.

None of Rall’s cases support a contrary conclusion. In each

case he cites,32 the court found that a news organization’s

“business or financial practices which do not involve First

Amendment rights” were properly subject to scrutiny. CBS, 412

U.S. at 155 (emphasis added). As the Washington Supreme

32OB 52-53 (citing Associated Press v. NLRB, 301 U.S. 103
(1937); Passaic Daily News v. NLRB, 736 F.2d 1543 (D.C. Cir.
1984); Hausch v. Donrey, 833 F.Supp. 822 (D. Nev. 1993)).

100
Court explained, the “Associated Press case is limited to the

[National Labor Relations Act] and union activity,” and courts

“should not stretch [it] beyond limits carefully crafted as part of

the original text to guide its application.” Nelson, 936 P.2d at

542.

The same is true of the Nevada court’s decision in Hausch,

which involved a discrimination lawsuit by a newspaper editor

claiming that she was by-passed for a promotion given to a male

colleague. 833 F.Supp. at 823-24. The publisher offered only a

“general allegation” that the choice of an editor “necessarily

impacts on what the [newspaper’s] message becomes,” but the

plaintiff did not claim that the hiring decision had any direct

relationship to specific editorial content. Id. at 832. As the

district court explained in McDermott v. Ampersand Publ’g, 2008

WL 8628728 (C.D. Cal. May 22, 2008), “Hausch only stands for

the proposition, … that, without an argument as to their specific

relationship to the exercise of its editorial discretion, a

newspaper’s personnel decisions with regard to editorial

employees are not as a matter of course rendered free from

regulation by the protections of the First Amendment.” Id. at *12

n.8.

101
Rall’s Publication Claims arise directly from The Times’

decision to stop publishing his work. 1/A.A./56-60. Allowing a

freelancer to dictate whether his work will be published, through

baseless “wrongful termination” and implied “contract” claims,

indisputably interferes with the publisher’s First Amendment

rights. Any freelance reporter who disagreed with an editor’s

changes to an article or disliked an assignment could file a

lawsuit, thereby subjecting the publisher to intrusive discovery

into editorial processes. That is not, and cannot be, the law.

Finally, Rall’s claim that this is a question of “right” versus

“remedy” (OB 52-53) is sophistry. The government cannot

constitutionally interfere with the editorial process, regardless of

the manner of interference. As the United States Supreme Court

has held:

What a State may not constitutionally bring about by

means of a criminal statute is likewise beyond the

reach of its civil law of libel. The fear of damage

awards … may be markedly more inhibiting than the

fear of prosecution under a criminal statute.

New York Times v. Sullivan, 376 U.S. 254, 277 (1964). It is well-

established that the full panoply of First Amendment protections

102
apply to lawsuits that seek only money damages. E.g., Shulman,

18 Cal.4th at 216 (“[t]ort liability, obviously, can extend no

further than the First Amendment allows”); Blatty, 42 Cal.3d at

1042 (First Amendment protections apply “to all claims whose

gravamen is the alleged injurious falsehood of a statement”).33

The Times had the right to stop publishing Rall’s work.

Where, as here, the purported “adverse employment action” is an

exercise of the newspaper’s First Amendment rights – namely, a

decision about whether particular work will be published – it

cannot form the basis of a claim. See Eisenberg, 74 Cal.App.4th

at 1391.

2. Rall’s Publication Claims Fail Because He Was Not
An Employee.

Rall concedes that all of his Publication Claims depend on a

finding that he was an employee of The Times; all of these claims

require an employment relationship. See Labor Code § 1050

33Jordan-Benel v. Universal Studios, 859 F.3d 1184, 1191
(9th Cir. 2017), does not hold that a plaintiff can avoid First
Amendment constraints by focusing on the remedy he seeks, as
opposed to the wrong he alleged. Jordan-Benel held only that the
SLAPP statute did not apply to an implied contract claim arising
from the alleged use of the plaintiff’s idea without compensating
him. Id. Rall is not claiming that The Times published his work
and did not pay him; he is complaining about a decision not to
publish it.

103
(statute applies to former employees); 1102.5 (prohibiting

retaliation by “[a]n employer, or any person acting on behalf of

the employer”); Varisco v. Gateway Science & Eng., 166

Cal.App.4th 1099, 1102 (2008) (rejecting contract and related

claims absent employment relationship); Soukup v. Law Offices

of Herbert Hafif, 39 Cal.4th 260, 288 (2006) (employer-employee

relationship is “prerequisite” to Labor Code § 1102.5 claim);

Hansen v. CDCR, 171 Cal.App.4th 1537, 1546 (2008) (same).

Rall conceded, in an email to The Times and in his

Complaint, that he was a freelancer. 1/A.A./39, 282. That is

unsurprising; Rall was an independent contractor as a matter of

law, i.e., one “who renders service for a specified recompense for a

specified result, under the control of his principal as to the result

of his work only and not as to the means by which such result is

accomplished.” Labor Code § 3353.34 As the Court explained in

Varisco, “the most significant question … is whether the person

to whom service is rendered has the right to control the manner

and means of accomplishing the result desired. ...” 166

34Rall’s claim that he is presumed to be an employee is
irrelevant. OB 54-55. The record shows that The Times easily
overcame any presumption.

104
Cal.App.4th at 1103 (citing S. G. Borello & Sons, v. Dep’t of Ind.

Rel., 48 Cal.3d 341, 350 (1989)). “Under this rule, the right to

exercise complete or authoritative control must be shown, rather

than mere suggestion as to detail.” Jackson v. AEG Live, 233

Cal.App.4th 1156, 1179 (2015).35

This is not a close case. Rall resides in New York

(1/A.A./37) – far from The Times’ headquarters in Los Angeles

(id.) – and he decided when, where and how he would work

(1/A.A./271-272). Rall did not receive reviews, and had no

supervisor. Id. The Times required the result of Rall’s work to

meet its publication standards and deadlines (1/A.A./271;

3/A.A./681), but it did not exercise control over the manner and

35 In Dynamex Ops. West, v. Superior Court, 4 Cal.5th 903
(2018), the California Supreme Court adopted a different test for
distinguishing employees from independent contractors in the
wage order context, but made clear the common law test
embraced in Borello applies in other contexts. Id. at 948. The
Court explained that the Borello standard “emphasizes the
primacy of statutory purpose” in making this determination;
consequently, “when different statutory schemes have been
enacted for different purposes, … a worker may properly be
considered an employee with reference to one statute but not
another.” Id. (citations omitted). In approving a different test in
the wage order context, the Court made clear it was “respect[ing]
the IWC’s legislative authority to promulgate the test” governing
that situation. Id.

105
means by which Rall created his cartoons and blog posts

(1/A.A./271).

The “secondary indicia of the nature of the relationship” –

which the Court should “weigh[] and consider[] as a whole” – also

establish that Rall was not an employee. Varisco, 166

Cal.App.4th at 1103-1104, 1106 (citing Borello, 48 Cal.3d at 351).

His syndicated work appeared in a number of other publications.

1/A.A./39-40. Rall’s evidence confirms that his work was not

exclusive to The Times, and he actively sought out work from

other clients simultaneously. 2/A.A./583-584; 3/A.A./699, 716.

Rall used his own work space and tools (1/A.A./271), and

his distinct occupation (cartoonist and author) requires unique,

individualized skills (id.; 1/A.A./39-40). The parties did not have

any agreement for service for a particular period of time.

1/A.A./271; 3/A.A./681. Instead, Rall was paid for each published

item ($200 for cartoons and $100 for blog posts); invoiced The

Times for his work; and paid his own taxes and expenses.

1/A.A./271, 297-314; see 1/A.A./39. Finally, The Times regularly

publishes content from freelancers and members of the public, as

well as from employees; the fact of publication does not define the

relationship. 1/A.A./271.

106
Courts routinely find independent contractor status in

much closer relationships. For example, in Arnold v. Mutual of

Omaha, 202 Cal.App.4th 580 (2011), an insurance agent was an

independent contractor, although defendant provided office space,

managers, training, computer software and reimbursed certain

expenses. Id. at 588-589.36 These factors did not even create

triable issues of fact, because, among other things, plaintiff used

her own judgment in deciding when and how she would work, her

relationship with defendant was nonexclusive, and defendant did

not conduct performance reviews or supervise her work. Id. at

589.

Similarly, in Beaumont-Jacques v. Farmers Group, 217

Cal.App.4th 1138, 1145-1146 (2013), the court held that an

insurance agent was an independent contractor, although

defendant required annual business plans, regular attendance at

meetings, adherence to “Minimum Acceptable Performance

Standards,” and had “sole final authority to hire and dismiss any

agent in [plaintiff’s] district, and to provide a two-year subsidy

36 Accord Mission Insurance v. Workers’ Comp. Appeals
Bd., 123 Cal.App.3d 211, 216-217, 221 (1981) (plaintiff was
independent contractor although “he attended lectures and
classes at Morse, and wore a shirt with a Morse insignia”).

107
(partially at [plaintiff’s] expense) for her district’s newly hired

agents.” Because plaintiff retained control over the manner in

which she satisfied defendant’s requirements, she was an

independent contractor. The same analysis applies here.

Rall largely ignores these authorities, asserting only that

this is a jury question. But California law is clear that “if from

all the facts only one inference may be drawn it is a question of

law.” Varisco, 166 Cal.App.4th at 1105 n.2 (affirming summary

judgment for company because “undisputed facts” established

plaintiff was independent contractor rather than employee).

California courts routinely resolve this issue pre-trial. E.g.,

Arnold, 202 Cal.App.4th at 582 (affirming summary judgment for

company); Beaumont-Jacques, 217 Cal.App.4th at 1140 (same);

Jackson, 233 Cal.App.4th at 1178-82 (same; summary

adjudication).

Rall’s heavy reliance on Tieberg v. Unemployment Ins.

App. Board, 2 Cal.3d 943 (1970), is misplaced. There, the Court

affirmed an agency finding that writers were employees largely

because collective bargaining agreements referred to them as

employees and even provided for pensions – neither of which

exist here. Id. at 952. In addition, the agreements gave the

108
producer extensive control over the writers, including requiring

in-person meetings. Id. The producer also exercised

“considerable control over the details of the work.” Id. at 954.

Similarly, Ali v. L.A. Focus Publication, 112 Cal.App.4th

1477 (2003), is inapposite. There, the court found that payment

to plaintiff “by the article rather than given a guaranteed

monthly salary is certainly indicative of an independent

contractor status,” but found substantial other evidence weighed

against summary judgment. Id. at 1485. This included evidence

that the plaintiff “attended or was required to attend weekly staff

meetings”; defendant provided plaintiff with office space, supplies

and services (id.); and evidence that articles were “written under

the direction and control of [the editor], who worked closely with

him critiquing the articles’ content and style.” Id. at 1486

(citations omitted). The plaintiff also was required to obtain the

editor’s “consent before submitting articles to other publications”;

plaintiff assisted “in other editorial duties”; none of the people

defendant identified as “freelance writers” had the same

obligations or benefits as plaintiff; and defendant “may have

identified [plaintiff] as an employee” in getting him a press pass.

109
Id. The cumulative evidence – easily distinguishable from Rall’s

circumstances – led the court to find a jury issue.37

Rall has not cited a single case where a jury issue was

found based on the kind of minimal facts he presented to the trial

court. The Times exercised control over the ultimate decision to

publish or not publish, but Rall controlled everything else: he

worked in his home, on his own schedule, using his own

materials; and he was paid by the piece. Because Rall was an

independent contractor, the trial court’s order striking his

Publication Claims should be affirmed.

3. Rall’s Publication Claims Fail For Other Reasons.

Rall’s O.B. abandons his claim for retaliation under Labor

Code § 1102.5. His other Publication Claims fail for the reasons

discussed above, and because Rall did not establish the elements

of those claims.

37 Ali does not create new protection against “retaliation by
proxy” or the purported silencing of a critic, as Rall claims. O.B.
59. In Ali, an employee was punished for political speech outside
the workplace. 112 Cal.App.4th at 1483, 1488. In contrast, Rall
tries to assert a right to publish on The Times’ website. Plainly,
he has no such right.

110
a. Rall’s Wrongful Termination Claim Was
Properly Stricken.

California employers generally may terminate employees at

will. Labor Code § 2922. Wrongful termination claims are a

“narrow exception” to this rule, where a “fundamental public

policy” requires limiting the employer’s rights. Green v. Ralee

Eng’g 19 Cal.4th 66, 71 (1998). To state a claim, Rall had to

demonstrate his “termination” was for one of a limited set of

reasons: it “must violate a public policy that is fundamental, well

established and carefully tethered to a constitutional or statutory

provision.” Carter v. Escondido Union HSD, 148 Cal.App.4th

922, 925 (2007) (coach’s advice to students did not implicate

fundamental public policy).38 Rall was required to demonstrate

conduct that violated a law adopted for the public benefit, Foley

v. Interactive Data, 47 Cal.3d 654, 670 (1988), and “[i]t must be

clear from the provision itself or from some other legislative or

38 Rall alleges The Times violated its internal procedures
and industry standards. 1/A.A./40. Even if true – which The
Times strongly disputes – that cannot provide a basis for a
wrongful termination claim. Rope v. Auto-Chlor Sys. of Wash.,
220 Cal.App.4th 635, 649 (2013) (“an internal complaint does not
trigger whistleblower protection under Labor Code section 1102.5
(citation omitted)); Carter, 148 Cal.App.4th at 934 (Section
1102.5 did not apply to “routine ‘internal personnel disclosure’”).

111
regulatory enactment that employers are not free to disregard or

limit that right.” Sinatra v. Chico Unified School District, 119

Cal.App.4th 701, 706 (2004).

In the trial court, Rall did not identify any law that The

Times purportedly violated in deciding to stop publishing his

work. 18/A.A./5877; see 7/A.A./2041-2044. Now, he offers a new

theory: that The Times punished him for alleged political speech

– criticizing the LAPD – purportedly violating Labor Code

§§ 1101-1102. OB 57-59. As a threshold matter, this Court

should reject this argument because Rall did not raise it

previously. 420 Caregivers v. City of Los Angeles, 219

Cal.App.4th 1316, 1340 (2012).39

In any event, Rall’s new theory is baseless. Sections 1101

and 1102 only prohibit employers from punishing employees for

political activities that take place outside of their work. In

California Teachers Ass’n v. Governing Board, 45 Cal.App.4th

39 The underlying premise of Rall’s argument is
nonsensical. Rall admits that The Times published many pieces
critical of the LAPD. 3/A.A./684; see, e.g., 6/A.A./1185, 1304,
1305, 1317, 1319, 1321. The Times’ reporting often places it at
odds with police unions. E.g., LBPOA v. City of Long Beach, 59
Cal.4th 59 (2014); POST, 42 Cal.4th at 278; PPOA, 240
Cal.App.4th at 268; ALADS v. Los Angeles Times, 239
Cal.App.4th 808 (2015).

112
1383 (1996), the court held that these provisions do not apply to

teachers’ conduct during working hours, and upheld a school

district policy preventing employees from wearing political

buttons at work. The court explained that teachers “act with the

imprimatur of the school district which employs them,” and it is

impossible “to both permit instructors to engage in classroom

political advocacy and at the same time successfully dissociate

the school from such advocacy.” Id. at 1390.

California courts have refused to interpret Sections 1101

and 1102 in a manner that would permit employees to interfere

with the employer’s operations. E.g., Lockheed Aircraft v.

Superior Court, 28 Cal.2d 481, 486 (1946) (employer “engaged in

producing vital war materials” did not violate Section 1101 by

discharging employee who advocated overthrowing the

government).40

Accord Mitchell v. International Association of
40

Machinists, 196 Cal.App.2d 796, 819-20 (1961) (statutes apply “at
least where the political activity of the member is not patently in
conflict with the union’s best interests”); Smedley v. Capps,
Staples, Ward, Hastings and Dodson, 820 F.Supp. 1227, 1230 n.3
(N.D. Cal. 1993) (Mitchell strongly suggests employer may “curb
an employee’s advocacy of political views when the employee’s
political activities are patently in conflict with the employer’s
interests”).

113
These principles control here. Rall has no right to express

his political views on The Times’ website – and he has no right to

embellish or exaggerate accusations about a police officer’s

conduct to advance his political agenda. The Times, however, has

a constitutional right to control its news operations to protect the

integrity of its publications. See Eisenberg, 74 Cal.App.4th at

1391.

Ali, 112 Cal.App.4th 1477, does not support Rall’s claims.

There, a community affairs columnist for a monthly newspaper

was punished for critical statements about a politician, which he

made as a guest on a radio show unconnected to his work at the

newspaper. The newspaper did not claim that the statements

undermined its integrity and objectivity; thus, the court

distinguished Eisenberg, 74 Cal.App.4th at 1391, pointing out

that the termination involved outside political activity, and had

nothing to do with “the editorial policies or standards of the

newspaper ….” 112 Cal.App.4th at 1483, 1488. Here (like

Eisenberg, but unlike Ali ) Rall’s relationship with The Times

114
ended because his published work undermined its fundamental

interest in maintaining its journalistic integrity.41

Rall’s argument essentially is that the court should punish

The Times for refusing to publish a freelancer’s political

commentary, which Sections 1101 and 1102 do not support. A

wrongful termination claim “cannot be broader than the

constitutional provision or statute on which it depends.” City of

Moorpark v. Superior Court, 18 Cal.4th 1143, 1159 (1998). Rall’s

eleventh-hour argument should be rejected.

b. Rall’s “Contract” Claims Fail Because The
Times Did Not Waive Its Constitutional Right
Of Editorial Control.

Generally, absent proof of a contrary agreement or

limitation, an employee may be discharged at any time, with or

without notice, for any lawful reason. Guz v. Bechtel Nat’l, 24

Cal.4th 317, 335-336 (2000). Rall’s Fifth and Sixth Causes of

Action attempt to evade this clear right by alleging vaguely that

41The Times had the right to stop publishing Rall’s work if
he engaged in any activity that diminished The Times’ credibility.
Nelson, 936 P.2d at 1129 (“to protect the newspaper’s credibility,
Defendants may enforce the political neutrality of reporters”).
Although Rall’s purported “political activity” is not at issue here –
The Times stopped publishing Rall’s work because of accuracy
concerns – Sections 1101 and 1102 cannot be applied in a manner
that would violate The Times’ First Amendment rights.

115
he had some sort of unstated agreement that altered The Times’

undisputed right not to publish his work. 1/A.A./57-58; see

18/A.A./5875. Yet Rall offered no proof of any agreement –

because none existed. Instead, he claims that because The Times

published his cartoons, he “understood” that this relationship

would continue indefinitely. 3/A.A./681.

That failed to satisfy Rall’s heavy burden of establishing

that The Times waived its First Amendment right to control the

content of its newspaper. See City of Glendale v. George, 208

Cal.App.3d 1394 (1989) (“it is well established that courts closely

scrutinize waivers of constitutional rights, and ‘indulge every

reasonable presumption against a waiver’”; rejecting argument

that appellants had waived their constitutional rights by entering

into consent judgment); Eisenberg, 74 Cal.App.4th at 1386, 1389-

90 (employee bears burden of proving agreement altering at-will

relationship).42

Apparently recognizing that he cannot support the claim he

pled, Rall now alleges another new theory – that he should have

42 Accord Ferlauto, 74 Cal.App.4th at 1399-1400 (no waiver
where contract did not clearly limit First Amendment rights);
Integrated Healthcare Holdings, v. Fitzgibbons, 140 Cal.App.4th
515, 531-532 (2006) (same).

116
had “a fair opportunity to present his position” to The Times

before it ended their relationship. OB 60-61. This ignores that

The Times gave Rall ample opportunity to explain the

inconsistencies between his accounts and the LAPD’s records,

including a telephone conversation with The Times’ Op-Ed Page

Editor, Nicholas Goldberg, and several conversations with

reporter Paul Pringle. 1/A.A./270; 3/A.A./691-695. After hearing

Rall’s explanations, The Times concluded that there were

“serious questions” about Rall’s account. 3/A.A./696; see

1/A.A./66.

Rall’s new iteration of this claim should be rejected because

he failed to raise it previously. This Court should not consider it

now. 420 Caregivers, 219 Cal.App.4th at 1340.43

Even if Rall’s new theory is considered, his claim fails: The

Times and Rall did not agree on the new contractual obligations

43 Rall effectively is attempting to amend his complaint to
allege an entirely different “contract” than the one he pled.
Plaintiffs may not evade the SLAPP statute by amending a
complaint after a motion is filed. E.g., Simmons v. Allstate, 92
Cal.App.4th 1068, 1073 (2001) (“the anti-SLAPP statute makes
no provision for amending the complaint once the court finds the
requisite connection to First Amendment speech”); accord Sylmar
Air Conditioning v. Pueblo Contracting Svcs., 122 Cal.App.4th
1049, 1055-56 (2004); Schaffer v. County of San Francisco, 168
Cal.App.4th 992 (2008).

117
Rall tries to impose on The Times. Reciting catch-phrases like

“due process,” Rall asks this Court to create a series of steps that

The Times must take before it decides not to publish a

freelancer’s work. OB 60-61. Under the guise of a “contract”

claim, Rall insists that The Times was obligated to give him a

face-to-face meeting, presume that he is credible absent

“compelling evidence to the contrary”; and retain an expert to

assess his claims, among other things. OB 60-61.44 But there is

not a shred of evidence that The Times ever agreed to any of this.

1/A.A./271; see generally 3/A.A./681-720 (Rall’s declaration). The

trial court properly rejected Rall’s unsupportable contract claim.

1/A.A./57-58.

Rall’s claim for a purported implied-in-fact contract is

equally flawed. The Supreme Court has explained this requires

evidence showing “a ‘tendency in reason’ … to demonstrate the

44 Rall cites a few declarations from other cartoonists
reciting their predictions about what their employers would do
under similar circumstances. 3/A.A./735 (“I like to think
management would have …”); 3/A.A./740 (“I assume that my
prior management would have …”); 3/A.A./747 (opining, without
foundation, about what management might have done);
3/A.A./751 (same). None of these assertions are admissible
evidence of an agreement between Rall and The Times. See also
Section VI.

118
existence of an actual mutual understanding on particular terms

and conditions of employment.” Guz, 24 Cal.4th at 337. The

totality of the circumstances must be examined “to determine

whether the parties’ conduct, considered in the context of

surrounding circumstances, gave rise to an implied-in-fact

contract limiting the employer’s termination rights.” Id.

In Guz, the Court rejected plaintiff’s claim of an implied-in-

fact agreement that he could only be fired for cause. Id. at 341.

The Court held that plaintiff's length of service, “even where

marked with tangible indicia that the employer approves the

employee’s work,” could not overcome the presumption of an at-

will relationship. Id. at 341-42. Not every “vague combination of

Foley factors, shaken together in a bag, necessarily allows a

finding that the employee had a right to be discharged only for

good cause.... [¶] On the contrary, ‘courts seek to enforce the

actual understanding’ of the parties to an employment

agreement.” Id. at 337.

Rall has even less evidence than the plaintiff offered in

Guz. OB 61-62. He did not come close to proving an express or

implied promise for the amorphous “rights” he now asks this

Court to impose on The Times.

119
c. Rall’s Labor Code § 1050 Claim Was Properly
Stricken.

Rall’s claim under Labor Code § 1050 is essentially a

defamation claim, subject to the same defenses and constitutional

requirements. See Walker v. Boeing, 218 F.Supp.2d 1177, 1185

n.4, 1193-1194 (C.D. Cal. 2002). Accord O’Shea v. General Tel. ,

193 Cal.App.3d 1040, 1047-1049 (1987) (striking Section 1050

claim under Civil Code § 47(b)). This claim fails because Rall was

not an employee (Section 2), and because Rall’s defamation

claims fail (Section V.A).

This claim also fails because Rall did not allege, and cannot

prove, that any prospective employer was convinced not to hire

him because of The Times’ Articles. In Walker, for example,

plaintiff’s claims were rejected when he conceded that he had “no

idea whether Boeing ever communicated the allegedly low rating

to any potential employer.” 218 F.Supp.2d at 1194; see also Kelly

v. General Telephone, 136 Cal.App.3d 278, 289 (1982) (affirming

dismissal because plaintiff offered no evidence that

misrepresentation made to potential employer). No case has

allowed a Section 1050 claim without evidence that the former

employer communicated with a prospective employer in an

120
“attempt[] to prevent the former employee from obtaining

employment.” Labor Code § 1050.

Rall seeks to convert Section 1050 into a broad vehicle for

alleged defamation, allowing plaintiffs to recover treble damages

merely for showing alleged reputational harm. Labor Code §

1054. No authority supports this wholesale rewriting of the law.

Because Rall’s conclusory declaration (3/A.A./716) did not meet

his burden under Section 1050, the trial court properly rejected

this claim.

VI. THE TRIAL COURT SHOULD HAVE SUSTAINED
RESPONDENTS’ EVIDENTIARY OBJECTIONS

The trial court did not rule on Respondents’ evidentiary

objections. 18/A.A./5920-5933; 13/A.A./4008. To demonstrate a

probability of prevailing, Rall must “establish evidentiary

support for [his] claim.” Navellier v. Sletten, 106 Cal.App.4th

763, 776 (2003). He cannot simply rely on his pleadings, but

must produce competent, admissible evidence “to sustain a

favorable judgment if … credited.” Taus v. Loftus, 40 Cal.4th

683, 713-714 (2007).

Rall largely relied on hearsay, improper opinion, legal

conclusions, and speculative claims lacking foundation.

121
13/A.A.4008-4066. Respondents’ objections to this inadmissible

evidence should have been sustained.

VII. CONCLUSION

For the foregoing reasons, Respondents respectfully request

that this Court affirm the trial court’s decisions granting their

SLAPP Motions and striking the Complaint.

Dated: June 21, 2018 DAVIS WRIGHT TREMAINE LLP
KELLI L. SAGER
ROCHELLE WILCOX
DAN LAIDMAN
DIANA PALACIOS

LOS ANGELES TIMES
COMMUNICATIONS LLC
JEFF GLASSER

By:/s/ Kelli L. Sager
Kelli L. Sager
Attorneys for Defendants/
Respondents AUSTIN BEUTNER,
NICHOLAS GOLDBERG, PAUL
PRINGLE, DEIRDRE EDGAR,
TRONC INC. (F/K/A TRIBUNE
PUBLISHING COMPANY), LOS
ANGELES TIMES
COMMUNICATIONS LLC,
TRIBUNE 365 LLC, and TRIBUNE
INTERACTIVE, LLC

122
CERTIFICATE OF WORD COUNT

Pursuant to California Rule of Court 8.204(c), the text of

this brief, including footnotes and excluding the caption page,

table of contents, table of authorities, certificate of interested

entities or persons, the signature blocks and this Certificate,

consists of 19,534 words in 13-point Century type as counted by

the Microsoft Word word-processing program used to generate

the text.

Dated: June 21, 2018 DAVIS WRIGHT TREMAINE LLP
KELLI L. SAGER
ROCHELLE WILCOX
DAN LAIDMAN
DIANA PALACIOS

LOS ANGELES TIMES
COMMUNICATIONS LLC
JEFF GLASSER

By:/s/ Dan Laidman
Dan Laidman
Attorneys for Defendants/
Respondents AUSTIN
BEUTNER, NICHOLAS
GOLDBERG, PAUL PRINGLE,
DEIRDRE EDGAR, TRONC
INC. (F/K/A TRIBUNE
PUBLISHING COMPANY),
LOS ANGELES TIMES
COMMUNICATIONS LLC,
TRIBUNE 365 LLC, and
TRIBUNE INTERACTIVE, LLC

123
PROOF OF SERVICE

I am employed in the City and County of Los Angeles, State of
California. I am over the age of 18 and not a party to the within action.
My business address is DAVIS WRIGHT TREMAINE LLP, 865
South Figueroa Street, Suite 2400, Los Angeles, CA 90017.

On June 21, 2018, I hereby certify that I electronically filed
the foregoing RESPONDENTS' BRIEF through the Court's
electronic filing system, TrueFiling.

I certify that participants in the case who are registered
TrueFiling users will be served via the electronic filing system
pursuant to California Rules of Court, Rule 8.70.

**SEE ATTACHED SERVICE LIST**

I further certify that participants in the case who are not
registered TrueFiling users are served by mailing the foregoing
document by First-Class Mail, postage prepaid, to the following non-
TrueFiling participants:

Clerk for the Hon. Joseph R. Kalin LASC Case No.
Superior Court, County of Los Angeles BC613703
111 North Hill Street
Los Angeles, CA 90012-3014

I placed such envelope(s) with postage thereon fully prepaid for
deposit in the United States Mail in accordance with the office practice of
Davis Wright Tremaine LLP, for collecting and processing correspondence
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office practice of Davis Wright Tremaine LLP, for collecting and processing
correspondence for mailing with the United States Postal Service, which
practice is that when correspondence is deposited with the Davis Wright
Tremaine LLP, personnel responsible for delivering c01Tespondence to the
United States Postal Service, such correspondence is delivered to the United
States Postal Service that same day in the ordinary course of business.

Executed on June 21, 2018, at Los Angeles, California.

I declare under penalty of perjury, under the laws of the
State of California, that the foregoing is true and correct.

Ellen Duncan
Print Name Signature
DAVIS \VRIGHT TREMAINE J,LP
865 S. FIGUEROA ST, SUITE 2400
PROOF OF SER VICE LOS ANGELES, CALIFORNIA 900 17-2566
4817-0455-6395v. l 0026175-000486 (213) 633-6800
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SERVICE LIST

Roger A. Lowenstein, Esq. Attorneys for
1949 Coldwater Canyon Drive Plaintiff and Appellant
Beverly Hills, CA 90210 Frederick Theodore Rall, III
Tel: (213) 705-9153
Fax: (213) 381-8489
Email: rlowenstein@laleadership.org

Jeffrey Lewis, Esq. Attorneys for
609 Deep Valley Drive, Suite 200 Plaintiff and Appellant
Rolling Hills Estates, CA 90274 Frederick Theodore Rall, III
Tel: (310) 935-4001
Fax: (310) 872-5389
Email: Jeff@)JeftLewisLaw.com

2 DAVIS \VRJGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
PROOF OF SERVICE LOS ANGELES, CALIFORNJA 90017-2566
(213) 633-6800
(213) 633-6899
4817-0455-6395v. I 0026175-000486