Judge: Jon R. Takasugi, Case: 21STCV08662, Date: 2023-05-02 Tentative Ruling

Case Number: 21STCV08662    Hearing Date: May 2, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s special motion to strike Plaintiff’s first cause of action is GRANTED.

            On 3/4/2021, Plaintiff Carlos Woods (Plaintiff) filed suit against Los Angeles Community Colleges District (Defendant), alleging: (1) defamation; (2) violation of due process; (3) wrongful termination; (4) racial discrimination; (5) failure to take all reasonable steps to prevent discrimination; (6) intentional interference with prospective economic advantage; and (7) negligent interference with prospective economic advantage.

            Now, Defendant moves to specially strike the first cause of action for defamation.

Factual Background

            Plaintiff’s first cause of action arises from a student-written article published in Defendant’s school newspaper. The article reported that Plaintiff, as the head football coach at Pierce Community College, was being investigated for purportedly arranging for his players to live in crowded apartments, for allowing student athletes to live in a locker room on campus, for collecting rent money from the players in a pooled arrangement and then pocketing the money without paying the landlord, and for recruiting violations.

Legal Standard

On a special motion to strike pursuant to Code of Civil Procedure section 425.16, also known as an anti-SLAPP motion, moving parties have the initial burden to demonstrate that a cause of action is subject to a special motion to strike. (Martinez v. Metabolife Inter. Ins. (2003) 113 Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304.) First, the court must determine whether moving parties have made a prima facie showing that the attacked claims arise from a protected activity, including defendants’ right of petition, or free speech, under a constitution, in connection with issues of public interest. (Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal.App.4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; CCP § 425.16, subd. (e).) Moving parties can satisfy this burden by showing (1) statements made before legislative, executive or judicial proceedings, or made in connection with matters being considered in such proceedings, or (2) statements made in a public forum, or other conduct in furtherance of the exercise of the constitutional rights of petition or free speech, in connection with issues of public interest. (CCP § 425.16, subd. (e); Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) 

If the court finds this showing has been made, it must dismiss the cause of action unless the plaintiff meets its burden to demonstrate a probability of prevailing on the claim. (CCP., § 425.16, subd. (b)(1); Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336.) This means that the plaintiff must state a legally sufficient claim and must then present evidence that substantiates or sustains the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; see also Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited”].) 

Discussion

            Defendant argues that Plaintiff’s defamation claim is subject to a special motion to strike because it arises from a matter of public concern discussed in a public forum and Plaintiff cannot establish a probability of prevailing on the merits because Plaintiff is a public figure or at the very lease a limited purpose public figure, and he cannot show that the article was written with actual malice.

            As for the first element, Defendant argues that the defamation cause of action satisfies the first prong of the anti-SLAPP analysis—i.e., the claim arises out of protected activity—because “[r]eporting the news is speech subject to the protections of the First Amendment and subject to a motion brought under section 425.16, if the report concerns a public issue or an issue of public interest.” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal. App. 4th 156, 164.) Here, the defamation claim is based on a student-newspaper which achieved notoriety and was picked up by numerous national syndicates. (Grenier v. Taylor (2015) 234 Cal. App. 4th 471 [“statements made on a website are made in a public forum”]; Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal. App. 4th 1027, 1038 [newspapers and magazines are a public forum within the meaning of Code of Civil Procedure section 425.16].) The content of the article concerned alleged misconduct by Plaintiff as it concerned student athletes. Treatment of student athletes is a highly-discussed issue in public life, and Courts have concluded that fact patterns similar to those here constituted a matter of public concern within a public forum.

In McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, a college football coach brought a defamation action against the university due to an article in the San Diego Union Tribune. (Id. at p. 102-03.) The matter involved the school’s termination of the football coach because he (1) had an argument with the athletic director, (2) kicked a football at some trainers during a practice, and (3) had some arguments with his assistants. (Id. at p. 104.) The Court determined that this coach was a public figure, and the article covered a matter of public concern:

McGarry occupied a high-profile position in San Diego's athletic community, and the abrupt termination of his employment, coming in the middle of a successful season and on the eve of an important game, was an issue of import to a substantial segment of the public. It was important to those immediately affected by the change in leadership, including the players, the players' parents, and the staff connected to University football team. Moreover, it was of import to those who follow the team's fortunes, including University's current students, University's alumni and boosters, potential recruits to the football team, and peripheral fans of the team. Finally, the loss of a team's head coach is of import to competitor schools, both for its immediate impact on the team's performance in the remaining contests for the current season and for the reverberations on recruiting players for future seasons.

(Id. at p. 109.)

            Here, similarly, the investigation and firing of Plaintiff had repercussions for the team, the school, the fan base, and for potential recruits. The public impact of Plaintiff’s firing is evidenced by the fact that an article was written about it for dissemination to Defendant’s student body, and that the story was then picked up by external news agencies and disseminated to the public at large.

            As such, the Court agrees that Plaintiff’s defamation claim arises out of protected activity because it arises out of statements made in a public forum. (CCP § 425.16, subd. (e).)

            As for the second prong of the anti-SLAPP analysis, Defendant argues that Plaintiff cannot establish a probability of prevailing because he cannot show evidence of malice and “[t]he constitutional guarantees (of freedom of speech and press) require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (Curtis Pub. Co. v. Butts (1967) 388 U.S. 130, 133-34.)

            To show that Plaintiff is a public official, and thus subject to the actual malice standard for defamation, Defendant contends that Courts throughout the country have repeatedly concluded that coaches and teachers in public institutions have the status of “public figures” and “public officials”, even at levels as low as high school. (See e.g. Brewer v. Rogers (1993) 211 Ga. App. 343 [high school football coach]; Daubenmire v. Sommers (2004) 156 Ohio App. 3d 322 [former high school football coach].)

Indeed, even in cases where individuals lack authority to manage a class amounting to an entire football team, the courts have construed such lower ranking public officials as public figures. (See e.g. McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 841 [fn. 3] [police inspector]; Gomes v. Fried (1982) 136 Cal. App. 3d 924, 933 [patrolman or lowlevel police officer]; Kahn v. Bower (1991) 232 Cal. App. 3d 1599, 1613 [county social worker with power over lives of handicapped children].)

As the Court in Mosesian v. McClatchy Newspapers (1988) 205 Cal. App. 3d 597 articulated:

[T]he Supreme Court's vision of a ‘public official’ is someone in the government's employ who: (1) has, or appears to the public to have, substantial responsibility for or control over the conduct of governmental affairs; (2) usually enjoys significantly greater access to the mass media and therefore a more realistic opportunity to contradict false statements than the private individual; (3) holds a position in government which has such apparent importance that the public has an independent interest in the person's qualifications and performance beyond the general public interest in the qualifications and performance of all government employees; and (4) holds a position which invites public scrutiny and discussion of the person holding it entirely apart from the scrutiny and discussion occasioned by the particular controversy.

(Id. at 608.)

Here, Plaintiff had substantial authority over numerous people within Defendant’s public system—he hired and fired assistant coaches, managed an entire football team of youths, and helped arrange their living accommodations. Moreover, a football coach at a public community college, like a football coach at a high school, has an important role that would warrant the public taking an interest in his qualifications. Indeed, that he held a position that invited public scrutiny is established by the fact that numerous articles were written about Plaintiff, including articles by national agencies. (See Defendant Exhs. “E” - “G” – “N”.)

As a result, the Court agrees that Plaintiff qualifies as a public figure. However, it is important to note that even if the Court did not conclude he was a public figure per se, it would still have concluded that he was a limited-purpose public figure. A limited-purpose public figure “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” (Gertz v. Robert Welch (1974) 418 U.S. 323, 351.) “[W]hen called upon to make a determination of public figure status, courts should look for evidence of affirmative actions by which purported ‘public figures’ have thrust themselves into the forefront of particular public controversies[.]” (Reader's Digest Assn. v. Sup. Ct. (1984) 37 Cal. 3d 244, 254-55.)

Here, this is Plaintiff’s second time being thrust into public controversy for alleged misconduct as a football coach. While at Gavilan College, Plaintiff was investigated for purportedly engaged in misconduct concerning the number of athletes living in a small apartment pursuant to another. He was then investigated for the same conduct while coaching for Defendant.  Recruiting violations and treatment of student-athletes is a “hot-button” issue, and the Court agrees that Plaintiff, serving as a public official, voluntarily interjected himself into the public sphere surrounding the public matter topic of student-athlete treatment and recruitment. Accordingly, the malice standard applies.

To show that Plaintiff cannot establish malice, Defendant submitted a declaration from Arielle Zolezzi, the author of the student newspaper article, wherein she states that she held no ill-will against Woods, had a fairly friendly relationship with him at the time, that she interviewed a number of athletes while writing the article, and reported her findings to the editorial staff (including her editor-in-chief. (Zolezzi Decl., ¶¶ 3,4.) The editorial staff vetted the story internally and made an effort to get their facts straight, and verify their sources, before they published the article. (Ibid.)

The numerous athletes Zolezzi quoted in the article actually made the statements attributed to them. (Id. at ¶5). Dr. Genice Sarcedo-Magruder told Zolezzi that Pierce Community College had placed coach Woods under investigation. (Ibid.) Zolezzi also had information that Woods had allowed three ineligible players to play in a game. (Ibid.) And, that he had accommodated four players to live in a field house. (Ibid.) Moreover, numerous athletes reported that he allowed upward of 30 football players in an apartment, under highly questionable conditions. (Ibid.) Numerous players told Zolezzi they lost their tenancy because Woods failed to pay rent on their behalf, after he collected rent money in a pooled arrangement. (Ibid.) Zolezzi entertained absolutely no reservation as to the truthfulness of the reports she had received. (Id. at ¶5. ) She had no suspicions whatsoever that she had received false information. (Ibid.) Rather, when Woods declined to comment to clear his name, it raised a “big red flag,” and she developed a strong conviction in the truthfulness of these accusations. (Ibid.)

            Moreover, Defendant advances two additional arguments: (1) an article reporting an ongoing investigation does not amount to a factual assertion; and (2) Zolezzi spoke truth, and the burden of proving falsity falls on Plaintiff.

            As for the first contention, the Ninth Circuit of Appeals has held that use of the words “under investigation,” or words of similar force and effect, do not amount to an assertion of fact for the purposes of defamation. Defendant argues that Zolezzi’s article makes no conclusion on the guilt or innocence of Plaintiff, but rather reports that an investigation is underway. The Court agrees.

In Crowe v. County of San Diego (9th Cir. 2010) 608 F.3d 406, a Deputy District Attorney told the media on “48 Hours” that the juvenile brother of a young murder victim, and his friends, were all under investigation for her murder. (Id. at 442-44.) The plaintiffs sued for defamation because they believed the interview implied that they had actually committed the murder. (Id.) The Ninth Circuit affirmed the decision of the United States District Court for the Southern District of California granting summary judgment. (Id.) The Court determined that the Deputy District Attorney did not really articulate any fact for the purposes of defamation. Instead, the Court reasoned that the Deputy District Attorney had left the ultimate fact an open question, concluding that a report of “being under investigation” is not, per se, defamatory:

Stephan [the Deputy District Attorney] repeatedly emphasized that it was unclear who the real perpetrator was. For example, early in the interview Stephan was asked ‘[D]o you believe that one day somebody, someone, some people will pay for the murder of Stephanie Crowe?’ Stephan responded, ‘The conclusion might be that the young men will face justice. It might be that the transient will face justice. It might be that another person will face justice.’ Also, at the end of the interview, Stephan was asked, ‘Are you saying that you believe the boys did it and you just can't prove it?’ Stephan responded, ‘I'm not saying that at all. I am saying that we have to start from the beginning .... the young men, the transient and maybe others out there are potential suspects in this case. We're not excluding anyone at this point.’ At most, Stephan implied that the boys may have killed Stephanie, not that they necessarily did. This expression of a possibility, particularly when juxtaposed to another mutually exclusive possibility, does not express a ‘provably false’ fact. The district court thus properly granted summary judgment.

            Here, the heading of Zolezzi’s article reads: “Pierce football coach under investigation.” The article does not advance a conclusion as to whether the allegations against Plaintiff are, in actuality, true. Rather, it is clear from the article that an active investigation is ongoing, and no formal assessment of the situation had been completed. Indeed, the article provides:

Alexis Montevirgen, who became President of Pierce on July 1, 2019, said he has yet to receive a formal report.

‘So I'm waiting and I'm trying to remain impartial. I'm waiting for that type of report because I don't want to be biased by any hearsay at this point,’ Montevirgen said. ‘So right now I don't have any concrete information, but I do know that the dean (Sarcedo-Magruder) is on this and working on it, so I just look forward to receiving a full and comprehensive report on what the status is.’

(Defendant’s COE, Exh. E.)

As such, the Court agrees that Zolezzi’s assertion that Plaintiff was “under investigation” cannot amount to defamation as a matter of law. (Crowe, supra, 608 F.3d 406.)

Plaintiff did not oppose this motion, and thus has not met his burden to show a probability of prevailing on the merits of this claim. (CCP § 425.16, subd. (b)(1); Balzaga, supra, 173 Cal.App.4th at p. 1336.)  Moreover, Plaintiff’s failure to oppose is considered to be concession on the merits to Defendant’s motion.

Based on the foregoing, Defendant’s special motion to strike Plaintiff’s first cause of action is granted.

It is so ordered.

Dated:  May    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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